IN THE COURT OF APPEALS OF THE STATE OF IDAHO
Docket No. 38271
STATE OF IDAHO, ) 2012 Unpublished Opinion No. 503
)
Plaintiff-Respondent, ) Filed: May 31, 2012
)
v. ) Stephen W. Kenyon, Clerk
)
DOUGLAS JAMAL HAMBRICK, ) THIS IS AN UNPUBLISHED
) OPINION AND SHALL NOT
Defendant-Appellant. ) BE CITED AS AUTHORITY
)
Appeal from the District Court of the Fourth Judicial District, State of Idaho, Ada
County. Hon. Ronald J. Wilper, District Judge.
Judgment of conviction for trafficking in cocaine, affirmed.
Sara B. Thomas, State Appellate Public Defender; Spencer J. Hahn, Deputy
Appellate Public Defender, Boise, for appellant.
Hon. Lawrence G. Wasden, Attorney General; Russell J. Spencer, Deputy
Attorney General, Boise, for respondent.
________________________________________________
GUTIERREZ, Judge
Douglas Jamal Hambrick appeals from his judgment of conviction entered upon a jury
verdict finding him guilty of trafficking in cocaine. For the reasons set forth below, we affirm.
I.
FACTS AND PROCEDURE
Detective Coy Bruner of the Boise Police Department used a confidential informant to
attempt to set up a controlled buy of 1/2 ounce of cocaine from Hambrick. Hambrick rejected
the initial request, however, insisting he would only sell a full ounce and suggesting the
informant pool his resources with a friend. Upon direction from Detective Bruner, the informant
agreed to buy a full ounce, and Detective Jason Harmon of the Boise Police Department
accompanied the informant, posing as the informant’s friend and fellow buyer.
The informant and Detective Harmon picked up Hambrick in a drug store parking lot and
were directed by Hambrick to a nearby apartment complex. While en route, the vehicle was
1
pulled over by a Boise police officer according to a pre-arranged plan to positively identify
Hambrick. Upon arriving at the apartment complex parking lot, Hambrick exited the vehicle and
told the informant and Detective Harmon to wait while he met his cocaine source. Hambrick
returned approximately five minutes later with the cocaine, which he delivered in exchange for
$900. During the exchange, Hambrick assured Detective Harmon “the weight was right.” After
Hambrick left, Detective Harmon conducted a field test on the cocaine, which required him to
destroy a small amount of the drug.
Hambrick was arrested and charged with trafficking in cocaine, Idaho Code
§ 37-2732B(a)(2)(A), which required the State to show Hambrick actually delivered at least 28
grams of cocaine 1 or that he represented it as at least 28 grams. At trial, a technician from the
State laboratory testified the cocaine weighed 27.99 grams. Following the close of evidence,
Hambrick requested the jury be instructed as to entrapment, which the district court denied. The
jury found Hambrick guilty of trafficking in cocaine. Hambrick now appeals.
II.
ANALYSIS
Hambrick contends the evidence was insufficient to support the jury’s verdict;
specifically, he argues the evidence was insufficient to support a finding that the actual weight of
the cocaine was at least 28 grams or that he had represented it as weighing as much. He also
contends the district court erred in allowing Detective Harmon to testify as to his opinion
concerning how much cocaine he used to conduct the field test. Finally, Hambrick argues the
district court erred in denying his request that the jury be instructed as to entrapment.
A. Sufficiency of the Evidence
Hambrick contends the State failed to present sufficient evidence to establish beyond a
reasonable doubt that he trafficked in cocaine. Specifically, he argues that while the evidence
supported a conviction for delivery of a controlled substance, a conviction for trafficking in
cocaine could only have been based on conjecture or speculation because there was insufficient
evidence to support a conviction based on the actual weight or the represented weight of the
drugs. Further, Hambrick contends that even if the evidence was sufficient to support a guilty
verdict on one basis, he is nonetheless entitled to a new trial.
1
An ounce is equivalent to 28.3495231 grams.
2
Appellate review of the sufficiency of the evidence is limited in scope. A finding of guilt
will not be overturned on appeal where there is substantial evidence upon which a reasonable
trier of fact could have found the prosecution sustained its burden of proving the essential
elements of a crime beyond a reasonable doubt. State v. Herrera-Brito, 131 Idaho 383, 385, 957
P.2d 1099, 1101 (Ct. App. 1998); State v. Knutson, 121 Idaho 101, 104, 822 P.2d 998, 1001 (Ct.
App. 1991). We will not substitute our view for that of the trier of fact as to the credibility of the
witnesses, the weight to be given to the testimony, and the reasonable inferences to be drawn
from the evidence. Knutson, 121 Idaho at 104, 822 P.2d at 1001; State v. Decker, 108 Idaho 683,
684, 701 P.2d 303, 304 (Ct. App. 1985). Moreover, we will consider the evidence in the light
most favorable to the prosecution. Herrera-Brito, 131 Idaho at 385, 957 P.2d at 1101; Knutson,
121 Idaho at 104, 822 P.2d at 1001.
Pursuant to Idaho Code § 37-2732B(a)(2), any person who knowingly manufactures,
delivers, or brings into this state, or who is knowingly in actual or constructive possession of 28
grams or more of cocaine is guilty of trafficking in cocaine. Further, the statute provides that
“the weight of the controlled substance as represented by the person selling or delivering . . . is
determinative if the weight as represented is greater than the actual weight . . . .” I.C.
§ 37-2732B(c). Thus, a person may be convicted of trafficking in cocaine based on either the
actual weight of the cocaine or the weight as represented if greater than the actual weight. See
State v. Escobar, 134 Idaho 387, 389, 3 P.3d 65, 67 (Ct. App. 2000).
Here, the State pursued a conviction on both theories, arguing Hambrick was guilty both
because the actual weight of the cocaine was 28 grams or more and because Hambrick
represented to the informant on the phone he would sell him an ounce and reassured the
undercover detective when the buy was taking place that the “weight was right.” On appeal,
Hambrick argues the evidence was insufficient to sustain a conviction on either basis.
In regard to the represented weight, Hambrick contends the State failed to produce any
evidence that Hambrick ever used the term “ounce” or its equivalent 2 when referencing the drugs
sold to the informant. Hambrick argues the only statement attributable to him regarding the
2
Detective Coy Bruner testified at trial that “ounce” is “not terminology that’s consistent
with people that deal dope or drugs.” He testified those involved in drug trafficking use
equivalent terminology such as “an ‘O’ or a ‘zip’ or a ‘full one,’ something to that extent.”
3
weight of the cocaine was Detective Harmon’s testimony that, upon returning to the vehicle with
the cocaine, Hambrick had “assured [the detective] that the weight was right.” Hambrick
contends that because Detective Harmon never testified that the detective or the informant asked
Hambrick if the cocaine delivered was an ounce or the equivalent, Hambrick’s statement
regarding the weight being “right” was “without sufficient context from which to infer that Mr.
Hambrick was representing the cocaine to weigh an ounce.” Therefore, Hambrick contends the
jury’s verdict was necessarily based on speculation as to what Hambrick meant when he
purportedly stated the “weight was right” and was not sufficient evidence to support a guilty
verdict.
This dispute largely arises from the somewhat disparate testimony of the detectives as to
Hambrick’s statements when he was in the vehicle delivering the cocaine and the fact that
although the tape of the interaction was introduced into evidence, during a significant portion of
time the audio was indecipherable. At trial, Detective Bruner, who was listening to the
transaction occur over the wire in the apartment complex parking lot, testified that Detective
Harmon asked whether the weight was correct and if it was, in fact, an ounce and Hambrick
responded that he had weighed the cocaine himself and assured him it was an ounce. Detective
Bruner read a portion from his police report, 3 which he stated he had written the afternoon or
evening of the drug buy:
I wrote that Mr. Hambrick got back into the vehicle with Detective
Harmon and delivered an ounce of cocaine to Detective Harmon, during which
time Mr. Hambrick assured Detective Harmon it was an ounce of cocaine.
On direct examination, when asked whether Hambrick said anything to him once he
returned to the car with the cocaine, Detective Harmon testified, “He assured me that the weight
was right, and actually told me to squeeze it and to feel that it’s chunky, and referencing the
quality of it.” The following exchange then occurred on cross-examination concerning the
conversation with Hambrick after he delivered the cocaine:
[Defense counsel:] In fact, [Hambrick] never even used the word “ounce” to
you. Right?
[Detective Harmon:] You know, all I remember asking is, “Is the weight good?”
But I was there to do an ounce of cocaine deal.
3
The report itself was not admitted into evidence.
4
[Defense counsel:] But what I’m asking you is: Did he ever use the word
“ounce” to you?
[Detective Harmon:] I don’t recall.
The two then discussed Detective Harmon’s testimony to the grand jury covering his discussion
with Hambrick regarding the weight of the cocaine:
[Defense counsel:] There was a discussion with you and [the grand jury
prosecutor] . . . concerning whether or not a specific weight
or term was used. Would you agree?
[Detective Harmon:] Yes.
....
[Defense counsel:] And [the grand jury prosecutor] asked you this question:
“Did you talk in terms of a specific weight?”
And your answer at that time was?
....
[Detective Harmon:] “Well, we knew the deal was set to be an ounce.”
[Defense counsel:] And you finished, you said, “So when I asked him if the
weight was good,” you were talking of an ounce. Right?
[Detective Harmon:] Yes.
[Defense counsel:] But you never responded, “Yeah, he did say an ounce”?
[Detective Harmon:] No, I just said that I knew the deal was set to be an ounce.
So when I asked if the weight was good, I was talking of
the ounce.
[Defense counsel:] Right. So, on the audiotape you didn’t hear the word
“ounce”?
[Detective Harmon:] No, sir.
[Defense counsel:] You are saying yourself on the stand today that the word
“ounce” was never used, but that’s what you were meaning.
Is that right?
[Detective Harmon:] Yes, sir.
....
[Defense counsel:] And [your discussion with Hambrick is] being broadcast
over the transmitter also, but there’s nothing to hear on
there because it’s so bad. Isn’t that correct?
[Detective Harmon:] That is the recording.
[Defense counsel:] Yeah, the recording, yeah. It’s so bad.
....
[Defense counsel:] But even if it was good, you never said the word “ounce.”
[Detective Harmon:] I don’t recall saying the word “ounce.”
....
[Detective Harmon:] I don’t recall saying an ounce. That’s why I never testified
that the word “ounce” was said.
5
On appeal, Hambrick focuses on Detective Harmon’s testimony that he could not recall
either himself or Hambrick actually saying the word “ounce” during the transaction and argues
that Hambrick’s assertion that the “weight was right” could not be the basis of a finding that he
represented the drugs to be at least 28 grams. However, upon examination of the record, we
conclude there was sufficient evidence presented upon which a jury could permissibly infer
Hambrick represented the drugs as being an ounce by his uncontroverted statement that the
“weight was right.” In addition to testimony of Detective Bruner, that both Detective Harmon
and Hambrick explicitly referred to the drugs as an ounce during the transaction (which the jury,
as the trier of fact, was entitled to find credible), Detective Harmon also testified it was the
accepted understanding between the informant, Hambrick, and Detective Harmon that the weight
being sold was an ounce, thus, giving context to Hambrick’s statement. Further providing
context for the statement, Detective Bruner and Detective Harmon testified the police initially
attempted to set up a controlled buy from Hambrick to purchase 1/2 ounce of cocaine, but
Hambrick rejected any deal for less than an ounce. Officers then directed the informant to
contact Hambrick again to set up the purchase of an ounce of cocaine and have Detective
Harmon pose as the informant’s friend who would contribute half the buy money in order to
purchase an ounce. In addition, Detective Bruner testified the buy money given to Hambrick,
$900, was consistent with the purchase of an ounce of cocaine in Boise; that, as with all
powdered drugs, cocaine is purchased in increments of an ounce, a half-ounce, a quarter-ounce,
or smaller units; and that to pay $900 for less than an ounce would be unusual. Thus, the fact
Hambrick was paid $900 supports the inference that the “weight” to which he was referring was
an ounce. Examined as a whole, we conclude there was substantial evidence upon which a
reasonable trier of fact could have found the prosecution sustained its burden of proving the
essential elements of the crime beyond a reasonable doubt--namely, that by stating the “weight
was right,” Hambrick “represented” the cocaine was at least 28 grams as required by the statute.
Hambrick also argues on appeal the evidence was insufficient to uphold his conviction on
the alternate theory that the actual weight of the cocaine delivered was at least 28 grams because
it only weighed 27.99 grams at the State laboratory. He also argues that even assuming we find
there was sufficient evidence to convict him on one theory (as we found above), but not the
other, we must nevertheless order a new trial. Because it is dispositive, we address the latter
issue first.
6
Hambrick concedes his argument--that a new trial must be ordered even if sufficient
evidence is found for one basis for a conviction if there was insufficient evidence to convict on
the alternate basis--has previously been rejected by this Court in State v. Enyeart, 123 Idaho 452,
455-56, 849 P.2d 125, 128-29 (Ct. App. 1993), but asks for reconsideration of that decision here.
In Enyeart, the defendant was charged with felony injury to a child after Enyeart took his young
son to a concert and failed to supervise him, resulting in the son drowning in a pond on the site.
On appeal, Enyeart argued the felony injury to a child jury instruction was erroneous because it
allowed the jury to find him guilty either because he “willfully caused or permitted the person or
health of [his son], a child, to be injured” or he “willfully caused or permitted [his son], a child,
to be placed in such situation that its person or health was endangered.” Id. at 455, 849 P.2d at
128. Enyeart argued no evidence was produced to show he actually caused or injured his son
directly and, thus, the former alternative was erroneously given. This Court noted that even if
we agreed with Enyeart, that the instruction was improper, the United States Supreme Court had
addressed the issue of multiple alternative elements in a jury instruction, holding that although it
would generally be preferable to give an instruction removing from the jury’s consideration the
alternative basis of liability that does not have adequate evidentiary support, refusal to do so did
not provide an independent basis for reversing an otherwise valid conviction. Id. (citing Griffin
v. United States, 502 U.S. 46, 60 (1991)). Accord Turner v. United States, 396 U.S. 398, 420
(1970) (“The general rule is that when a jury returns a guilty verdict on an indictment charging
several acts in the conjunctive . . . the verdict stands if the evidence is sufficient with respect to
any one of the acts charged.”). We also noted Enyeart cited “no case in which a general verdict
has been set aside because one of the possible bases of conviction was unsupported by sufficient
evidence,” and therefore, his assignment of error was without merit since there was sufficient
evidence to support a conviction under the alternate theory. Enyeart, 123 Idaho at 456, 849 P.2d
at 129.
More recently, we applied this rule in State v. Cortez, 135 Idaho 561, 21 P.3d 498 (Ct.
App. 2001), where the defendant, charged with felony injury to a child, argued reversible error
because the jury was instructed it could find Cortez guilty if it found either that he had willfully
inflicted the child’s injuries or willfully caused or permitted the child to suffer, and the State
submitted no evidence in support of the latter. Id. at 564, 21 P.3d at 501. Upon noting the jury
had rendered a general verdict, we indicated this Court previously held in Enyeart that a general
7
verdict is not reversible where one of the possible bases of conviction was unsupported by
sufficient evidence and, therefore, the inquiry on appeal was whether there was sufficient
evidence to uphold any one of the bases of conviction. Cortez, 135 Idaho at 564, 21 P.3d at 501
(citing Enyeart, 123 Idaho at 456, 849 P.2d at 129). We concluded the evidence was sufficient
to find Cortez guilty under the theory that he willfully inflicted the child’s injuries, and we
concluded there was substantial and competent evidence to support the general jury verdict of
guilty for felony injury to a child. Id.
On appeal, Hambrick asks us to overrule Enyeart, because he, unlike Enyeart, cites to
several cases setting aside a general verdict on State law grounds where one of the possible bases
of conviction was unsupported by sufficient evidence. See State v. Jones, 29 P.3d 351, 371
(Haw. 2001) (rejecting Griffin based on the State’s due process clause); Commonwealth v.
Plunkett, 664 N.E.2d 833, 837 (Mass. 1996) (rejecting the government’s attempt to abandon the
established rule in light of Griffin and noting that “[i]f the judge tells a jury that they may find
the defendant guilty on a theory that is factually unsupported (in effect committing an error of
law), the jurors understandably might believe that there must be evidence to support that
theory”); State v. Ortega-Martinez, 881 P.2d 231, 235 (Wash. 1994) (rejecting Griffin on State
constitutional grounds). But see People v. Guiton, 847 P.2d 45, 53 (Cal. 1993) (harmonizing
Griffin rule with State law, holding that on appeal of a conviction by a jury that was presented
with alternate legal theories of conviction, and where one of which is factually unsupported, the
appellate court should affirm the judgment unless a review of the entire record affirmatively
demonstrates a reasonable probability that the jury in fact found the defendant guilty solely on
the unsupported theory); Atwater v. State, 626 So. 2d 1325, 1327 n.1 (Fla. 1993) (adopting
Griffin with approval).
We decline to overturn Enyeart and Cortez. The rule of stare decisis dictates that we
follow controlling precedent, unless it is manifestly wrong, unless it has proven over time to be
unjust or unwise, or unless overruling it is necessary to vindicate plain, obvious principles of law
and remedy continued injustice. Hughes v. State, 148 Idaho 448, 462, 224 P.3d 515, 529 (Ct.
App. 2009). While some state courts have deviated from Griffin, others have not, and Hambrick
has not demonstrated Enyeart and Cortez are manifestly wrong under the Idaho Constitution.
Thus, we decline Hambrick’s invitation to deviate from the United States Supreme Court and
overrule this precedent.
8
Accordingly, we need not address whether there was sufficient evidence to uphold the
verdict on the theory of actual weight or whether there was error in admitting opinion testimony
regarding how much cocaine was destroyed in performing the field test because where, as here, a
jury renders a general verdict, that verdict is valid so long as there is sufficient evidence as to one
of the submitted grounds. Griffin, 502 U.S. at 49; Enyeart, 123 Idaho at 455-56, 849 P.2d at
128-29. Since we have concluded there was sufficient evidence upon which a reasonable trier of
fact could find Hambrick represented the requisite weight, Hambrick’s sufficiency of the
evidence argument is without merit.
B. Jury Instruction
Hambrick contends the district court erred in refusing to instruct the jury on entrapment
because he presented sufficient evidence to support such an instruction. 4 The question whether
the jury has been properly instructed is a question of law over which we exercise free review.
State v. Severson, 147 Idaho 694, 710, 215 P.3d 414, 430 (2009). When reviewing jury
instructions, we ask whether the instructions as a whole, and not individually, fairly and
accurately reflect applicable law. State v. Bowman, 124 Idaho 936, 942, 866 P.2d 193, 199 (Ct.
App. 1993).
Idaho Code § 19-2132 requires that a trial court instruct a jury on “all matters of law
necessary for their information.” When a jury instruction is requested by a party, it must be
given if:
(1) it properly states the governing law; (2) a reasonable view of at least some
evidence would support the defendant’s legal theory; (3) the subject of the
requested instruction is not addressed adequately by other jury instructions; and
4
Specifically, Hambrick requested the jury be given Idaho Criminal Jury Instruction 1513,
which provides, in relevant part:
Law enforcement officials entrapped the defendant if three things occurred:
1. The idea for committing the crime came from an agent of the state and not
from the defendant.
2. The state agent(s) then persuaded or talked the defendant into committing the
crime. Merely giving the defendant an opportunity to commit the crime is not the
same as persuading the defendant to commit the crime.
3. The defendant was not ready and willing to commit the crime before the law
enforcement officials spoke with the defendant.
9
(4) the requested instruction does not constitute an impermissible comment as to
the evidence.
State v. Edney, 145 Idaho 694, 697, 183 P.3d 782, 785 (Ct. App. 2008).
A defendant cannot be convicted of a crime he was entrapped into committing. State v.
Canelo, 129 Idaho 386, 391, 924 P.2d 1230, 1235 (Ct. App. 1996); State v. Mata, 106 Idaho 184,
186, 677 P.2d 497, 499 (Ct. App. 1984). The entrapment defense is a creature of common law,
and it occurs when an otherwise innocent person, not inclined to commit a criminal offense, is
induced to do so by a government agent who, desiring grounds for prosecution, originates the
criminal design and implants in the mind of the innocent person the disposition to commit the
alleged offense. State v. Koller, 122 Idaho 409, 411, 835 P.2d 644, 646 (1992); State v. Ingram,
138 Idaho 768, 773, 69 P.3d 188, 193 (Ct. App. 2003); Canelo, 129 Idaho at 391, 924 P.2d at
1235. There is a distinction between originating the idea for an offense and merely furnishing
the opportunity to commit it. Canelo, 129 Idaho at 392, 924 P.2d at 1236. The latter is not
entrapment; rather, it is a legitimate method of ferreting out crime. Id.
To prevail on appeal, Hambrick must show there is a reasonable view of the evidence
presented that would support the theory of entrapment. Hambrick contends such evidence was
presented as to each element of an entrapment defense. First, he points out he did not initiate
contact with the confidential informant and it was Detective Bruner who originated the idea to
commit the crime. As to the second element, he contends the fact the informant’s initial attempt
to arrange a drug buy of 1/2 ounce from Hambrick was unsuccessful and a second deal had to be
set up supports an inference that an agent of the State talked him into committing the crime.
Finally, he contends there was evidence he was not ready and willing to commit the crime before
being approached by the confidential informant, including the fact the informant’s first attempt
to set up a deal had been unsuccessful, as well as Detective Harmon’s testimony that after the
three men were pulled over by an officer subsequent to leaving the drug store parking lot,
Hambrick began to exhibit some “trepidation” and nervousness and went through with the deal
after Detective Harmon and the confidential informant provided some reassurances.
We conclude, however, there is no evidence of undue influence, compulsion, or
persuasion from the confidential informant to talk Hambrick into committing the crime. The
informant merely presented Hambrick with an opportunity to violate the law, which he
eventually took. Hambrick’s argument, that the fact the initial attempt to set up a deal was
10
unsuccessful supports his contention that he was talked into participating in the drug deal, is not
well-taken. The evidence presented at trial was that the initial attempt failed not because
Hambrick expressed hesitancy to engage in illegal activity, but because he would only sell drugs
in a larger amount. On this evidentiary record, Hambrick could not reasonably be found to be an
“otherwise innocent person” not inclined to commit the offense. See Ingram, 138 Idaho at 773,
69 P.3d at 193 (holding the district court did not err in refusing to give an entrapment instruction
where there was no evidence the undercover detective did more than simply present the
defendant with the opportunity to sell drugs). Therefore, the trial court correctly refused the
proposed instruction on entrapment.
III.
CONCLUSION
There was sufficient evidence that Hambrick represented the cocaine as weighing at least
28 grams to support Hambrick’s conviction for trafficking in cocaine. Further, the district court
did not err in denying Hambrick’s request that the jury be instructed as to entrapment because
there was no reasonable view of the evidence presented that would support the theory of
entrapment. Hambrick’s judgment of conviction for trafficking in cocaine is affirmed.
Judge LANSING and Judge MELANSON CONCUR.
11