dissenting:
Appellant’s statement of the case in her opening brief strikes me as being a rhetorical but still rather accurate portrayal of what this case is all about. Appellant’s opening brief tells us that Ms. Colon’s “conviction occurred in a familiar manner”:
An actual criminal comes forward and offers to help manufacture sales charges against a drug user in exchange for being allowed to escape accountability for [her] crimes;
Police agree to the deal, approach the targeted user and ask her to procure drugs;
Like all users, the target knows where to obtain drugs and complies with the request;
The addict is charged with being a drug dealer, and is convicted after an unfair trial during which the State bombards the jury with a combination of conjecture, innuendo, prior bad acts, and personal attacks; .... The State obtains another valuable statistic in order to claim victory in the war on drugs.
*495Ms. Colon’s principal argument1 is that she was a procuring agent as a matter of law. This is a classic case of a defendant’s being a procuring agent rather than the seller. All that Ms. Colon did was to buy drugs for an undercover police officer after he persistently urged her to do so. After being importuned by the officer to obtain drugs for him, she finally decided to do so as an accommodation to the officer, who had taken great pains to befriend her, solely for the purpose of persuading her to buy drugs for him. Ms. Colon correctly argues that the procuring agent defense was formulated for the purpose of preventing agents of the State from going out of their way to make drug users into drug sellers by the device of leading drug addicts into “selling” drugs to police officers. Ms. Colon also maintains that to condone the State’s actions in this case would defeat the very purpose of the procuring agent rule. She is absolutely right.
As stated in Ms. Colon’s brief, the State led Ms. Colon into a drug sale in the “familiar manner.” It all started when Ms. Colon’s co-tenant, one Cesar Bazzar, in jail facing drug charges, told authorities that he would give them some incriminating evidence about a certain methamphetamine user if they would give him favorable treatment. This was the start of an intense police investigation of Ms. Colon, the purpose of which was to convict Colon of selling rather than merely using drugs.
Michelle Colon is a rather pitiful drug addict who had become addicted to the use of “speed,” methamphetamine. Her life history is a sad one. Because of severe child abuse, Ms. Colon was forced to run away from home when she was only twelve years old. She got married at fourteen and has three children. Ms. Colon has a low I.Q. and is borderline mentally retarded. It was *496not very difficult for the undercover agent to lure her into getting drugs for him; and it is clear that she would not have been involved in buying the drugs in issue if she had not been enticed into it by Agent Robert Meyers.
Mr. Bazzar’s willingness to betray his roommate to save his own skin initiated an intense police investigation of Colon. Hours of surveillance and the use of sophisticated electronic recording equipment were invested in trying to make a dope seller out of this retarded drug user/addict. It will be obvious to anyone who takes the time to read this record that what this mother of three needs is drug rehabilitation and not twelve years in prison at public expense.
After the police decided to use Mr. Bazzar to entice Ms. Colon into a drug-sales conviction, they equipped Mr. Bazzar with a recording device in the hope that he could set up Ms. Colon for some kind of drug sales charge. While “wired-for-sound,” Mr. Bazzar asked his friend, Ms. Colon, if she would be able to get him a small amount of their drug of choice, methamphetamine. Ms. Colon made some telephone calls but was unable to find anyone who would provide Mr. Bazzar with the drug.
Unsuccessful in their attempt to use Mr. Bazzar to catch Ms. Colon in the act of obtaining drugs for her friend, the police set up a “sting” operation in which an undercover police agent, Agent Meyers, made the attempt to involve Ms. Colon in a drug transaction. Agent Meyers was eventually successful in inducing Ms. Colon to drive around with him and Mr. Bazzar (in an unmarked police vehicle) trying to find someone who would sell them a small quantity of methamphetamine ($100.00 worth). On a July 22, 1993, dope-seeking caravan trio’s attempt was at first unsuccessful, but eventually Ms. Colon was able to locate, at a convenience store, a person who had previously fed her addiction. She was then able to buy a small quantity of the drug for Agent Meyers with the $100.00 that Meyers had given her.
Agent Meyers was not satisfied with this one transaction (perhaps because he realized at that point that Ms. Colon was clearly acting only as an agent for him, buying drugs for him and with his money). Agent Meyers no doubt realized that this transaction would not support a sales charge (although the jury in this case did convict for sales based on this transaction).
Drug Agent Meyers’ next attempt to set Ms. Colon up as a “seller” of drugs was ventured on August 31, 1993, at which time Agent Meyers went to Bazzar’s and Colon’s apartment with the intention of persuading Ms. Colon to procure for him a small quantity of methamphetamine. Ms. Colon agreed to try to get Meyers some of the drug. Agent Meyers left the apartment and came back in about one-half hour. When Agent Meyers returned, *497Ms. Colon agreed to go out and find some methamphetamine for her new friend, Drug Agent Meyers. Agent Meyers gave $240.00 to Ms. Colon to make the purchase for him. Ms. Colon returned to the apartment some time later and gave Agent Meyers his methamphetamine.
The two drug transactions outlined above present classic examples of the application of the so-called “procuring agent” defense. The procuring agent defense was devised by the courts to prevent the police from unjustifiably turning drug users into drug sellers in cases like this one. The general idea is that one cannot and should not be found guilty of being a “seller” when she/he has not acted for the supplier-vendor but solely for the buyer. Roy v. State, 87 Nev. 517, 519, 489 P. 2d 1158, 1159 (1971). Drug users in this state are subject to heavy penalties; but sellers are subject to much more severe penalties. It is simply unjust that an addict be punished as a seller unless the addict is actually involved in selling drugs. Ms. Colon might, possibly, have embezzled some of Agent Meyers’ drugs, which he had entrusted to her, but certainly Ms. Colon did not sell any drugs to anyone. If, for example, Ms. Colon had sold her own methamphetamine to Agent Meyers, she would be guilty of a sales offense; however, in this case, the drugs were not hers to sell, they were Agent Meyers’ drugs. All Ms. Colon was doing was taking Agent Meyers’ money and acting as his agent in the purchase, not sale, of drugs for Meyers from a third person. Until today, the courts have universally recognized that such actions do not constitute a criminal sale of drugs.
To identify a defendant as a procuring agent and not as a drug seller the courts have imposed the following requirements:
1. The person who does the buying must be an agent of the State.
2. The buyer must request the defendant to procure .drugs.
3. The drugs must have been obtained from a third person and cannot be the defendant’s drugs.
4. The defendant must not have profited from the transaction.
All four of the foregoing requirements apply to the transactions in this case; still, after a jury trial, Ms. Colon was convicted of two drug sales. One sales conviction arose out the events on July 22, 1993, the day that she found someone at a convenience store who would sell drugs to Agent Meyers. The other sales conviction was based on the August 31, 1993, transaction in her apartment, after she had gone out to find someone who would provide Agent Meyers with the drugs that he was seeking.
*498It is very difficult to understand, given the clear application of the procuring agent defense to these facts, how a conviction could have resulted in this case. It is obvious that Agent Meyers was instigating Ms. Colon to buy drugs for him, and with Meyers’ money. It is obvious that the drugs were obtained from third persons (the one at the convenience store and the person who provided the drugs for the sale in Ms. Colon’s apartment). This being the case, the only way that the State could make a drug user into a seller was to try to show in some manner that Ms. Colon made a “profit” from the two transactions.
The State’s position is that because Ms. Colon took a “pinch” of Agent Meyers’ drug buy, she was making a “profit.” First, it is quite clear that there is no proof beyond a reasonable doubt that she did, in fact, pilfer any of Agent Meyers’ drug. Second, if Ms. Colon did “pinch” some of Agent Meyers’ drugs, Ms. Colon cannot, in any sense of the word, be said to have made a “profit” merely by taking an unauthorized sample of the drugs that Agent Meyers bought.
The State’s attempt to prove that Ms. Colon made some kind of profit in delivering Agent Meyers’ drugs to him took the form of testimony by Agent Meyers that in his opinion Ms. Colon undoubtedly had cheated him — had not delivered what he had paid for. The State’s reasoning seems to be that if Agent Meyers did not receive the full amount that he bargained for, then Ms. Colon must be the one who shortchanged him and, if she shortchanged him, she therefore “profited” from the transaction. Agent Meyers expressed his opinion that Ms. Colon had taken a “pinch” of the drug before delivering it to him, basing his opinion on an assumption that drug-users usually do this. There is, of course, no actual evidence that she shortchanged Agent Meyers in this manner; and the State’s proof of this fact is based almost entirely on Agent Meyers’ speculation that he “felt sure” that she had taken a “pinch.” Agent Meyers bolstered his opinion that Ms. Colon must have pilfered a “pinch” of his methamphetamine by testifying that Ms. Colon appeared to be under the influence of methamphetamine, not remembering, apparently, that Ms. Colon was almost always under the influence.
The evidential problem with Agent Meyers’ supposed failure to get the full measure of what he paid for (if this were actually the case — there is no competent evidence that it is) is that Agent Meyers admitted that “weight is always short in almost any drug deal.” If Agent Meyers did in fact get less than he paid for, this would seem to be an expected state of affairs more likely traceable to the supplier than to the courier. The evidence does not adequately support the State’s case against Ms. Colon. It is pure *499conjecture as to whether the villain who “shorted” Agent Meyers was the supplier, other intermediaries, or Ms. Colon herself.
As for Agent Meyers’ opinion that Ms. Colon was under the influence of methamphetamine, this is of very little probative value. Ms. Colon admitted that she was an addict and that she used the drug on frequent occasions; she used methamphetamines in Agent Meyers’ presence, and the fact that she may or may not have been under the influence at one of the times she delivered Agent Meyers’ drugs (another matter of pure conjecture) is virtually immaterial — she was frequently under the influence of this drug. Whether or not Ms. Colon might have diverted a “pinch” of Agent Meyers’ methamphetamine is a matter of pure conjecture.2 In the State’s brief, it is argued that “Investigator Meyers believed that Ms. Colon took a pinch of the methamphetamines . . . .” (My emphasis.) Agent Meyers’ belief is not enough to make a sales case against this retarded drug user.
As the majority opinion points out, the “State has the burden of proving the drug sales and disproving the drug agency defense beyond a reasonable doubt.” The entire thrust of the State’s proof is, as put by the majority, that “Colon took and apparently used a portion of the methamphetamine.” (Emphasis added.) It is possible but unlikely that Ms. Colon did steal some of Mr. Meyers’ drugs and did take the fateful “pinch” (defined as an amount that can be “compress[ed] between the tips of the finger and thumb.” The Oxford Dictionary of English Etymology, 681 (Oxford University Press 1966, 1983)). Such possibilities, obviously, do not constitute proof beyond a reasonable doubt. I do not see how it can be said that the fact of her stealing Meyers’ drugs by taking a *500“pinch” was proven beyond a reasonable doubt; it is a matter of pure conjecture, based on what the drug agent claimed was a custom and practice among users of unprescribed methampheta-mines. Even if Ms. Colon did embezzle3 some of the drugs that Agent Meyers had entrusted to her, this certainly does not make her a seller of these drugs.
In sum, then, there is insufficient proof to show that Ms. Colon stole or embezzled Agent Meyers’ drugs, and even if she did, such pilfering cannot be called a “profit.” By adopting this “pinch”4 exception to the procuring agent rule, the court has abrogated the rule and effectively eliminated the rule from our jurisprudence.
In many ways this is a fatuous case at both the trial and appellate level. It appears that tens of thousands of dollars have been expended in a procrustean effort to bend a common drug user-addict into being a drug trafficker.5 Ms. Colon did not sell *501drugs; she did not sell anything; she procured drugs for the benefit of Agent Meyers and possibly stole a “pinch” of Agent Meyers’ drugs on the way home. By pretense and artificial device unknown to the jurisprudence of any other state, this court has created a novel “pinch” rule and has done away with the traditional and well-supported procuring agent defense. All of this, in my opinion, is very ill-advised and contrary to the best interest not only of the people of this state but contrary to the interest and ends of law enforcement.
I see the consequence of the majority opinion to be such an erosion of the procuring agent defense as to encourage drug enforcement agents to enhance their drug sales conviction “stats” by targeting relatively harmless addicts and sending them to prison for long terms. I see every case in which an addict is coaxed into obtaining drugs for an undercover agent as turning into a long-term prison, drug sales transaction rather than being what it is, a possession case. All the State will need for a sales conviction in the future is the opinion of the undercover agent that addicts usually take a sample of the drugs they are procuring and that, therefore, a “profit” is made and a drug sales conviction is warranted in every case.
It seems to me that the court’s decision today works to the disadvantage of law enforcement and, thus, to the disadvantage of us all. If the procuring agent defense is going to be eroded in this fashion, we are bound to see more and more cases of the kind that we are witnessing here. We will be seeing the win-loss statistics of the “war on drugs” artificially appear to be highly favorable to the “good guys” as long-term sentences are imposed on persons who are not involved in the marketing of drugs but only, sadly, are addicted to their use.
Today we send this mother of three off to prison because she is suspected of stealing a “pinch,” a mite, from Agent Meyers’ drug buy. We seem to have lost all sense of proportion. At a time when some enlightenment seems to be on the horizon, when, in the urban areas we are moving toward education and “drug courts” as a way of dealing with drug addicts, the authorities in the First Judicial District and this court are going in the opposite direction. Even as this conviction stands, I hope that some readers of this dissent will see the light and see how inherently unjust and how *502socially counterproductive it is to send this retarded mother of three off to prison for twelve years because she has allowed herself to become addicted to the use of unprescribed mood-elevators.
This case is riddled with error; however, this dissent deals principally with Ms. Colon’s contention that she was a procuring agent and not a “seller,” as a matter of law. I do not want to leave unmentioned, however, the fact that the State introduced evidence of a number of prior, unsubstantiated “bad acts” on the part of Ms. Colon, without complying with Petrocelli and Armstrong procedures, and, more importantly, the fact that the prosecutor commented freely on Ms. Colon’s silence (i.e., the prosecutor’s suggestion to the jury that by declining to testify, Ms. Colon “accepted Agent [Robert] Meyers’ version of events”), and the prosecutor’s misleading comment that Agent Meyers’ testimony stood “uncontroverted.” Armstrong v. State, 110 Nev. 1322, 885 P.2d 600 (1994); Petrocelli v. State, 101 Nev. 46, 692 P.2d 503 (1985). In a case like this one, where conviction is necessarily based entirely upon whether Ms. Colon took an unobserved “pinch” of the drugs she was procuring for Agent Meyers, these kinds of constitutional violations by the prosecution cannot be ignored and certainly cannot be said to be harmless. I do not make this the main thrust of my dissent, however, because I believe that the majority’s decision constitutes a drastic and unhealthy erosion, if not elimination, of the procuring agent rule and that, consequently, my attention should be directed principally to the majority’s distortion of the rule.
As a makeweight to its “profit” argument the State argued in its brief that Ms. Colon’s “cohort admitted they [sic] used the drugs that they [sic] had been given.” On checking the State’s argument in this regard I do find that Agent Meyers gave some testimony about a hearsay conversation that he had with an accomplice in this case (“cohort,” if you will), a man by the name of “Sam.” Agent Meyers was talking with Ms. Colon, and with Sam, when he confronted Ms. Colon on the “pinch” subject in this manner: “ ‘What did you do? Did you take half of this?’ ” According to Agent Meyers, this was Ms. Colon’s reaction to his accusation: “And she exploded. She left the room. She just — I don’t recall if she said anything or not. But she left the room.”
At this point Agent Meyers “turned around to Sam,” the accomplice, and said, “ ‘What did you guys do? Did you use half of this.’ ” According to Agent Meyers, Sam “did say ‘Yes.’ ” to that question. I suppose it could be argued, as the State does, that a “cohort” might have admitted that he used some of the drug; but this is not credible evidence of Ms. Colon’s having used the drug. In fact, when Ms. Colon was accused, she “exploded” and left the room. This to me is strong evidence of denial rather than an admission that Ms. Colon had in fact taken the infamous “pinch.” If there were any “pinch[ing]” in this case, it was done by “Sam.”
It is hard for me to understand how Ms. Colon’s supposed pilfering of Agent Meyers’ drug buy can be cast in terms of a “profit” to Ms. Colon. In the ordinary sense, a profit is the excess over cost gained by an owner who sells goods in a sales transaction. This definition is certainly not applicable here because the drugs were never owned by Ms. Colon. Title passed directly from the supplier to Agent Meyers when the drugs were delivered to Meyers’ courier, Ms. Colon. One might stretch the meaning of profit if Agent Meyers has said something like, “If you buy these drugs for me, I will give you a portion,” but that certainly was not what happened here. The very worst that happened here was that, without Agent Meyers' permission, Ms. Colon “pinched” (embezzled) a small portion of the drugs that Agent Meyers had entrusted to her. How a courier’s pilfering of goods purchased for, and belonging to, her principal can be called a profit is very puzzling to me. This is like saying that the grocery delivery boy who pilfers out of a grocery bag is making a “profit” on the grocery sale. This is, indeed, a strange case.
Anent to our presently announced “pinch” rule, I would note that a “pinch is, by definition an insubstantial or negligible quantity. It is hard for me to visualize just how much a “pinch” of a sixteenth of an ounce of powder might be, but it cannot be very much. If, as the maxim goes, the law is not concerned with trifles, it should not concern itself with whether Ms. Colon did or did not steal this twelve-years-in-prison “pinch.” Still, if the majority insists on calling theft of a “pinch” a “profit” and that such a theft or embezzlement turns Ms. Colon from a drug user into a drug seller, it is clear to me that the procuring agent defense is a thing of the past. Anytime there is a drug transaction now, the drug agent will simply come into court and say that procuring agents always sample the wares and that, therefore, they must have stolen some of the drugs. Under our new “pinch rule,” a procuring agent who snitches a “pinch” of the drug agent’s purchase somehow becomes a seller instead of a mere thief.
This case is an excellent example of the present need for a shift in anti-drug strategy and a move away from the kind of pursuit of nonviolent offenders that we witness in this case. The long-term incarceration of drug users who commit essentially victimless crimes is clogging our legal system *501and overcrowding our prisons and jails. Most of our criminal cases involve drug-user related crimes. If we could bridle our intemperate “rage to punish” and involve addicts like Ms. Colon in the penal system only when other measures fail, we would have a lot more time and attention to devote to the “real” criminals, the rapists, robbers, murderers and for-real drug traffickers.