(dissenting).
I dissent. I would find that entrapment was established as a matter of law.
It is important to note at the very outset that the facts in this case are not in dispute. It is the application of those facts to the law that poses the real problem.
The majority opinion admits that the idea to obtain cocaine clearly originated with the State and its agents. With this I wholeheartedly agree. The majority, however, concludes that the defendant had a predisposition to commit the crime, and that this was a question for the jury. On the basis of the evidence as detailed in the trial record, I cannot agree with this conclusion.
To successfully establish entrapment, as pointed out by the majority, two elements are required:
1. The defendant must show police inducement to commit the crime; and
2. That prior to this inducement he was not predisposed to commit the criminal act.
We have declared that four principal inducements may locate the intent in the government rather than the accused:
1. Appeals to friendship,
2. Appeals to sympathy,
3. Offers of excessive amounts of money, and
4. Appeals to the narcotics need, (not applicable here).
Without recounting the evidence, it is obvious that all of the first three inducements are easily attributable to the government.
Further, we have listed the criteria to be considered in determining whether the defendant had a preexisting intent:
1. Did the defendant first suggest the crime?
—The record is completely devoid of this element.
2. How ready was the defendant to commit the crime?
—For up to a whole year, the defendant refused all of the Agent’s solicitations to sell marijuana or cocaine. This despite the fact defendant was already a user of marijuana.
3. Ready response to police inducement?
—Not very ready, in light of Agent’s endeavor to obtain a response which continued almost a full year.
4. How familiar was defendant with the criminal activity?
—Defendant was familiar with different types of marijuana, but there is no evidence that he was knowledgeable with the drug cocaine, albeit, he did wear a coke spoon as a necklace, but this evidence alone is not sufficient to show predisposition to distribute cocaine.
5. Was the defendant in possession of a large supply of illegal contraband?
—The evidence does not warrant such a conclusion.
6. Did the defendant have ready access to cocaine?
—No evidence to indicate this. Defendant did call Cari Dilley in Pierre, who did deal in cocaine, and she did have some.
7. Was defendant able to collect a large quantity of cocaine in a short time?
*878—There was only a small amount of cocaine involved in the transaction and it didn’t belong to defendant.
The majority indicates Agent Boots, other than observing Moeller at local bars, had contact only once in July, 1984, when he tried to buy Moeller a drink, and then no further contact until March of 1985. Agent testified:
Q. About how many times did you have personal contact with Moeller prior to April 7 th where you have actually talked to him?
A. I’d say about 6, perhaps 7 times, sir.
Agent further testified he talked personally with Moeller three times. Frank and Esther Moeller testified Agent Boots called and talked to them “many” times. (Moel-ler did not have a phone of his own).
Agent further testified that Moeller told him he did not have or use any cocaine. Agent Boots testified:
Q. Who made the first offer of the deal to deliver cocaine to you from Kyle?
A. I believe I informed Mr. Moeller that the reason I wanted to obtain some drugs was to make sure he wasn’t a narcotics officer. So, I guess it would be me, sir.
Moeller admitted he knew someone who might be able to get Agent some cocaine. Agent admitted Cari Dilley, a lady from Pierre, furnished the cocaine and set the price at $240.00 per ounce, which Agent paid to Cari Dilley — Moeller never receiving any money whatsoever from this transaction.
Agent Boots further testified:
Q. You arrested Kyle in what month of ' what year, or were involved in that arrest?
A. 4-7-85.
Q. Exactly a year later, after you arrived in town?
A. Pretty close, yes, sir.
Q. During that one year period of time you were acting, as an undercover officer in Winner?
A. Yes.
Q. You were trying to undercover people selling narcotics?
A. That is correct, sir.
Q. And during that one year you never did undercover Kyle Moeller selling narcotics, did you?
A. No, sir.
Agent admitted talking to Moeller and his parents about buying the car between March 1 and March 14,1985. Further, that when he first came to Winner almost a year before, Deputy Wilcox showed him a picture of Moeller as being a person suspected of dealing in drugs.
Agent Boots further testified that on March 14, 1985, he was interested in buying Moeller’s car. At this same time he asked Moeller twice to sell him some marijuana and Moeller refused, stating he doesn’t deal in drugs.
The very next day, March 15, 1985, Agent agreed to buy Moeller’s car for $2,200.00 and made a $100.00 down payment. On this very same day he not only promised Moeller a job for $5,000.00 a month, but also his cousin Tim Moeller, and advised that they would leave for California on May 12th. Agent admitted he “pursued” Moeller to sell him drugs or introduce him to somebody that did sell drugs.
On the very day just before the “bust” (April 7, 1985), Agent admits he reminded Moeller that the $5,000.00 per month job in California was still on.
Concerning friendship with Moeller, Agent testified:
Q. He was always friendly and gentlemanly to you?
A. Yes.
Agent further admitted that he had asked Moeller to sell, distribute or give controlled substances to him “as a friend.”
Moeller’s testimony clearly indicates he was extremely interested in pleasing Agent in order to keep the job offer open. He testified?
Q. Bust came down on the 7th?
A. Yeah. He asked me previously to try and line somebody up, but I *879wasn’t going to do it until I had that job offer. I figured that I’d get in good with him and chances are he wouldn’t fire me or nothing.
Q. You were going to do him a favor because you were getting something and going to sell that car?
A. Yeah.
Q. You intended to go to California, intended to sell your car?
A. Yeah, I just wanted that five thousand dollar job.
Q. You didn’t deliver that cocaine to him out of any sympathy for him, did you?
A. Just as a friend.
It is further worthy of note that sometime in the “summertime” of 1984, witness Beth Bachman said she knew Deputy Wilcox and testified concerning a conversation she overheard him have with another individual. She testified:
A. I heard him mention Kyle Moeller’s name. I’m a good friend of Kyle’s and I have known him for awhile and so I listened closer and he just said that he had thought that his wife, or Kyle had tried to take out his wife because they were at the same party and if he ever found out that he’d get him.
It is well to remember the statement in Sorrells v. United States, 287 U.S. 435, 53 S.Ct. 210, 77 L.Ed. 413 (1932):
The defense of entrapment is available, not in the view that the accused though guilty may go free, but that the government cannot be permitted to contend that he is guilty of a crime where the government officials are the instigators of his conduct.
Viewing the evidence in the light most favorable to the State, there appears to be a lack of evidence that Moeller was “predisposed” to possess and sell cocaine, but on the contrary, there is abundant and significant evidence that he was not “predisposed.”
The government played on the weakness of Moeller and beguiled him into committing crimes which he had persistently refused to commit for fully a whole year. The evidence suggests that Moeller was not ready and willing to possess and sell cocaine whenever a “propitious opportunity” arose. The testimony is undisputed that during the course of almost a whole year, Moeller had never made any offer to sell marijuana or cocaine to the Agent, even though they had seen each other or had been with each other on numerous occasions during that time. The “propitious opportunity” was certainly there, but never acted upon by Moeller until after he had been offered large sums of money for his automobile and for employment in the state of California.
Inducement to commit an offense means affirmative activity on the part of the government agent. Whereas conduct merely affording a person an opportunity to commit an offense does not constitute entrapment. The officer’s conduct should not be calculated to “create” a criminal, but rather to “catch” a criminal in the act. Here, by the Agent’s own admission, he “created” the criminal. There is nothing in the testimonial record to demonstrate that Moeller had a detailed knowledge of the logistics of drug transactions, an understanding of techniques in trafficking of cocaine, nor of any predisposition to sell or possess cocaine. Further, there was no evidence showing any prior dispositions to possess or sell cocaine. At most, the record shows that Moeller was a user only of marijuana. The Agent was well aware that Moeller was a user of marijuana, but never did make an arrest for unlawful possession. Instead, the Agent vigorously pursued Moeller over an extended period of time in order to substantiate the more serious charge of distribution. Moeller successfully resisted the badgering or importuning activity on the part of the Agent, until the Agent no doubt in exasperation changed tactics and offered excessive and unrealistic amounts of money. This simply is not a case where Moeller initiated the sale. The initiative from beginning to end came from the State’s Agent. See for ex*880ample State v. Kamrud, 188 Mont. 100, 611 P.2d 188 (1980), and State v. Grenfell, 172 Mont. 345, 564 P.2d 171 (1977), where the Montana Supreme Court found entrapment as a matter of law on facts much less favorable to the defendant than exists in the present case. See also: Annot., 62 A.L.R.3rd 145 (1975).
In State v. Williams, 84 S.D. 547, 553, 173 N.W.2d 889, 892 (1970), we said:
Entrapment as a matter of law is not established where there is substantial evidence from which it may be inferred that the criminal intent to commit the offense originated in the mind of the accused, (emphasis added.)
The opposite then also must be true. Where the evidence is insubstantial then entrapment is established as a matter of law.
In United States v. Dion, 762 F.2d 674 (8th Cir.1985), there is a comprehensive and detailed discussion of the development of the defense of entrapment. The Dion court, citing Judge Sanborn in the case of Butts v. United States, 273 F. 35 (8th Cir.1921), stated:
The first duties of the officers of the law are to prevent, not to punish crime. It is not their duty to incite to and create crime for the sole purpose of prosecuting and punishing it. * * * It is unconscionable, contrary to public policy, and to the established law of the land to punish a man for the commission of an offense of the like of which he had never been guilty, either in thought or in deed, and evidently never would have been guilty of if the officers of the law had not inspired, incited, persuaded and lured him to attempt to commit it.
Further, Dion quoted with approval from Lopez v. United States, 373 U.S. 427, 83 S.Ct. 1381, 10 L.Ed.2d 462 (1963) that:
The conduct with which the defense of entrapment is concerned is the manufacturing of crime by law enforcement officials and their agents. Such conduct, of course, is far different from the permissible strategems involved in the detection and prevention of crime.
The crimes with which Moeller was charged and convicted were totally “manufactured” by the State’s Agent. The Agent, himself, testified that the sole reason he wanted Moeller to get drugs was so he could arrest Moeller for having drugs. The Agent had targeted Moeller in April of 1984. It took until April of 1985 to persuade Moeller to obtain cocaine. This at Agent’s insistence so Moeller could prove to Agent that he, Moeller, was not a narcotics agent. The record clearly shows the Agent set in motion his own scheme to bait an otherwise unpredisposed and unsuspecting Moeller into having cocaine in his possession at a certain time and place so that Agent could arrest him. After Agent had favored Moeller with $2,200.00 for an automobile admittedly worth only $800.00, and offered him a nonexisting job in California at $5,000.00 per month, Agent again requested Moeller to sell him some drugs. Again Moeller refused to do so. Unsatisfied, Agent finally persuaded Moeller to arrange for a third person to deal in drugs with Agent, with the proviso that Moeller must possess some of these drugs at that time to prove he was not a narcotics agent. As defense counsel aptly stated: “The question of whether or not Kyle Moeller was selling drugs was replaced with the question of: Is Kyle Moeller capable of being enticed to possess drugs?”
The majority opinion placed great emphasis on the statement: “After Boots (Agent) suggested the crime, it was Moeller’s activities that brought it to fruition.” Is this not true in every case involving the defense of entrapment, whether it be a jury question or a law question for the court? The majority misses the point. Every person who bites on the bait in an entrapment case can be said to be “predisposed” by his subsequent activity in response to government inducement. However, a defendant’s predisposition should not be assessed as of the time when he committed the crime as the majority indicates, but rather predisposition in entrapment cases refers to the state of mind of a defendant before government agents make any suggestion that he *881should commit the crime. United States v. Williams, 705 F.2d 603, 618 (2nd Cir.), cert. denied, 464 U.S. 1007, 104 S.Ct. 524, 78 L.Ed.2d 708 (1983).
This is what the second part of the subjective test is all about. The required showing by defendant is “that prior to the inducement he (defendant) was not predisposed to commit the criminal act.”
The Agent went far beyond providing an ordinary sale opportunity in an effort to ensnare Moeller. The Agent admitted he supplied the idea and plans for the crime. In other words, the Agent created the crime rather than uncovering it.
There is, of course, no fixed formula in arriving at a decision as to whether the entrapment defense is one for jury consideration, or one of law for the court. Every case must be judged on its own peculiar facts. Ultimately, it comes down to a test of fairness. Where the trickery, persuasion, and deceit of the officer rules out any perception of the fairness concept, and it is clear that such conduct implanted the criminal design in the mind of the defendant, then the court should act and bar the conviction.
It is important to remember that the presumption of innocence and the reasonable doubt standard of proof are more than platitudes to be given only lip service. In my opinion, if the rule as to presumption of innocence is fairly and properly applied in this case, reasonable minds acting fairly on the evidence would necessarily have a reasonable doubt as to Moeller’s guilt.
Accordingly, I would hold that entrapment has been established as a matter of law and the conviction should be reversed. This includes the conviction for possession of cocaine, since the State’s Agent was guilty of unconscionable conduct by entrapping Moeller into acting as a conduit for the sale of cocaine. This being so, the jury could not find him guilty of possession of cocaine, which he possessed only momentarily as an integral part of the sale.
I am hereby authorized to state that Justice WUEST joins in this dissent.