Submitted on Briefs: June 7, 2017.
FROM District Court of the Eleventh Judicial District, In and
For the County of Flathead, Cause No. DC 13-245 (C) Honorable
Heidi J. Ulbricht, Presiding Judge.
Appellant: Chad Wright, Chief Appellate Defender, Chad R.
Vanisko, Assistant Appellate Defender, Helena, Montana.
Appellee: Timothy C. Fox, Montana Attorney General, Tammy K
Plubell, Assistant Attorney General, Helena, Montana.
J. Corrigan, Flathead County Attorney, Kalispell, Montana.
M. SANDEFUR JUSTICE.
Pursuant to Section I, Paragraph 3(c), Montana Supreme Court
Internal Operating Rules, this case is decided by memorandum
opinion and shall not be cited and does not serve as
precedent. Its case title, cause number, and disposition
shall be included in this Court's quarterly list of
noncitable cases published in the Pacific Reporter and
The State charged Byron Nelson with criminal distribution of
dangerous drugs after Nelson sold marijuana to a friend who
was also a confidential informant for law enforcement. Nelson
filed a motion to dismiss, asserting he was entrapped as a
matter of law. Nelson and the officer handling his case
testified at a hearing on the motion. At the end of the
hearing, the District Court denied the motion on the ground
that genuine issues of material fact precluded judgment as a
matter of law on Nelson's entrapment defense. Pursuant to
an agreement with the State that preserved his right to
appeal the District Court's decision, Nelson pled guilty
prior to trial. Nelson appeals the Court's denial of his
motion to dismiss due to entrapment as a matter of law.
A district court's decision to grant or deny a motion to
dismiss is a question of law reviewed for correctness.
State v. Reynolds, 2004 MT 364, ¶ 8, 324 Mont.
495, 104 P.3d 1056. In reviewing a denial of a motion to
dismiss based on entrapment, we view the evidence and
inferences in the light most favorable to the State.
Reynolds, ¶ 8.
The entrapment defense is codified at § 45-2-213, MCA,
A person is not guilty of an offense if the person's
conduct is incited or induced by a public servant or a public
servant's agent for the purpose of obtaining evidence for
the prosecution of the person. However, this section is
inapplicable if a public servant or a public servant's
agent merely affords to the person the opportunity or
facility for committing an offense in furtherance of criminal
purpose that the person has originated.
bear the burden of proving entrapment. Reynolds,
¶ 9 (citing State v. Kyong Cha Kim, 239 Mont.
189, 194, 779 P.2d 512, 515 (1989)). In the absence of
genuine issues of material fact, the court may determine that
entrapment occurred as a matter of law. Reynolds,
¶ 9 (citing Kim, 239 Mont. at 194, 779 P.2d at
515). Otherwise, entrapment is a question of fact for jury
determination. Reynolds, ¶ 9.
Nelson asserts on appeal that the District Court erroneously
believed that entrapment was not amenable to resolution as a
matter of law. The transcript of the hearing on Nelson's
motion to dismiss indicates otherwise. The District Court
considered the testimony of Nelson and the officer and
determined there were outstanding questions of fact regarding
Nelson's entrapment defense. For example, Nelson claimed
he had never before sold drugs to the informant. The
informant told law enforcement that Nelson had sold him drugs
just two months before the sale that led to Nelson's
arrest. The fact that Nelson previously sold drugs
to the informant could potentially discredit his assertion
that he was not predisposed to illegally selling drugs.
See State v. Grenfell, 172 Mont. 345, 349, 564 P.2d
171, 173-74 (1977) (entrapment found when defendant was not
predisposed to commit the charged offense). Accordingly, the
District Court correctly determined Nelson's entrapment
defense was "a matter of fact to be heard by the jury at
trial." Nelson was free to proceed to trial and have a
jury determine the merit of his entrapment defense but chose
to enter a guilty plea instead. Viewing the hearing testimony
in the light most favorable to the State, we conclude that
the District Court did not err in denying Nelson's motion
to dismiss due to entrapment as a matter of law.
We have determined to decide this case pursuant to Section I,
Paragraph 3(c) of our Internal Operating Rules, which
provides for memorandum opinions. In the opinion of the
Court, the case presents a question controlled by settled law
or by the clear application of applicable standards of