COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Moon, Judges Willis and Bray
Argued at Norfolk, Virginia
STEVEN LYNN KIRBY
v. Record No. 2467-93-1 MEMORANDUM OPINION * BY
JUDGE RICHARD S. BRAY
COMMONWEALTH OF VIRGINIA JUNE 13, 1995
FROM THE CIRCUIT COURT OF THE CITY OF HAMPTON
John D. Gray, Judge
(James S. Ellenson, on brief), for appellant.
Appellant submitting on brief.
(James S. Gilmore, III, Attorney General;
Robert Q. Harris, Assistant Attorney General,
on brief), for appellee. Appellee submitting
on brief.
Steven Lynn Kirby (defendant) was convicted by a jury of
conspiring to possess, with intent to distribute, marijuana in
excess of five pounds, a violation of Code §§ 18.2-256 and
18.2-248. Defendant complains on appeal that the trial court
erroneously (1) overruled his pretrial motion "to suppress the
evidence on the grounds of entrapment," (2) precluded
introduction of evidence related to entrapment at trial, and (3)
declined to instruct the jury on the defense. We disagree and
affirm the conviction.
The parties are fully conversant with the record in this
case, and we recite only those facts necessary to explain our
holding.
In reviewing a trial court's ruling on a suppression motion,
we consider the evidence in the "light most favorable to . . .
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
the prevailing party below," the Commonwealth in this instance,
and the decision will be disturbed only if plainly wrong.
Commonwealth v. Grimstead, 12 Va. App. 1066, 1067, 407 S.E.2d 47,
48 (1991). "It is well established that, on appeal, appellant
carries the burden to show . . . that the denial of a motion to
suppress constitutes reversible error." Motley v. Commonwealth,
17 Va. App. 439, 440-41, 437 S.E.2d 232, 233 (1993) (citing Fore
v. Commonwealth, 220 Va. 1007, 1010, 265 S.E.2d 729, 731, cert.
denied, 449 U.S. 1017 (1980)).
"The admissibility of evidence is within the broad
discretion of the trial court, and a ruling will not be disturbed
on appeal in the absence of an abuse of discretion." Blain v.
Commonwealth, 7 Va. App. 10, 16-17, 371 S.E.2d 838, 842 (1988)
(citing Coe v. Commonwealth, 231 Va. 83, 87, 340 S.E.2d 820, 823
(1986)). "An appellant must demonstrate that the excluded
evidence is relevant and material and that the party was entitled
to have it introduced in order to establish on appeal that the
trial court erred by excluding it." Toro v. City of Norfolk,
14 Va. App. 244, 254, 416 S.E.2d 29, 35 (1992) (citation
omitted).
"The principles governing our review of a trial court's
decision refusing a jury instruction are well-settled." Brandau
v. Commonwealth, 16 Va. App. 408, 411, 430 S.E.2d 563, 564
(1993). If credible evidence in the record supports the
defendant's theory of defense, the trial judge may not refuse to
grant a proper, proffered instruction. Delacruz v. Commonwealth,
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11 Va. App. 335, 338, 398 S.E.2d 103, 105 (1990). "'Such an
instruction, however, must be supported by more than a mere
scintilla of evidence.'" Brandau, 16 Va. App. at 411, 430 S.E.2d
at 564 (quoting Boone v. Commonwealth, 14 Va. App. 130, 132, 415
S.E.2d 250, 251 (1992)).
Immediately prior to trial, the trial judge reminded counsel
that evidence and argument relative to the entrapment issue had
been considered at the earlier suppression hearing, and defendant
was precluded from again pursuing the defense during trial. The
record of this hearing reflects that defendant's brother, James
Michael Kirby (James) became acquainted with Carey McCormick, a
police informant, while participating in an inpatient drug
treatment program. Over a period of several days, McCormick
repeatedly inquired of James' interest in purchasing marijuana
following his release. James initially declined McCormick's
overtures, but eventually agreed, in order "[t]o make some
money." McCormick subsequently arranged a meeting between
James, Hampton Police Officer Charles Butler, then posing as a
narcotics distributor, and himself. James advised Butler that he
"couldn't buy the twenty pounds of marijuana, . . . could only
come up with money for ten pounds, but he wanted the ten pounds."
After confirming the price, quality, weight, and origin of the
marijuana, James "excused himself" to contact the "other person"
involved in the purchase and obtain the necessary funds to
conclude the transaction. Later that evening, defendant
accompanied James to a second meeting with Butler, exhibited the
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purchase money to Butler and, together with James, agreed to
purchase the marijuana. Defendant also advised Butler that
"after he got rid of the six pounds, he would have enough cash
for the balance of four pounds."
"'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.'" McCoy v. Commonwealth, 9
Va. App. 227, 231, 385 S.E.2d 628, 630 (1989) (quoting Stamper v.
Commonwealth, 228 Va. 707, 715, 324 S.E.2d 682, 687 (1985)). "If
the criminal design originated in the mind of the defendant and
the police did no more than 'afford an opportunity for the
commission of a crime' by a willing participant, then no
entrapment occurred." McCoy, 9 Va. App. at 231, 385 S.E.2d at
630 (citation omitted). Police may "'use . . . decoys,
undercover agents and informers . . . to present an opportunity
to one willing to commit a crime.'" Id. at 232, 385 S.E.2d at
630 (citations omitted). "Reluctance 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." Id. (citation omitted).
Here, the record provides ample support for the trial
court's ruling on the suppression motion and subsequent
limitation of defendant's evidence during trial. Butler merely
"'present[ed] an opportunity to one willing to commit a crime.'"
Id. (citations omitted). Nothing in the record suggests that
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either defendant or James was coerced, tricked, or otherwise
improperly drawn into criminal conduct by the police. Under such
circumstances, evidence relevant to entrapment and an instruction
on the defense would have only confused the jury and diverted its
attention from those matters properly in issue. See Powell v.
Commonwealth, 13 Va. App. 17, 24, 409 S.E.2d 622, 627 (1991).
Accordingly, the trial court correctly excluded both the disputed
evidence and attendant instruction, and the conviction is
affirmed.
Affirmed.
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