COURT OF APPEALS OF VIRGINIA 

Present: Chief Judge Fitzpatrick, Judges Benton and Clements 

Argued at Chesapeake, Virginia 

ROBERT ALONZA HARRELL 

 MEMORANDUM OPINION* BY 

v. Record No. 2821-99-1 CHIEF JUDGE JOHANNA L. FITZPATRICK 

 DECEMBER 19, 2000 

COMMONWEALTH OF VIRGINIA 

 FROM THE CIRCUIT COURT OF THE CITY OF CHESAPEAKE 

V. Thomas Forehand, Jr., Judge 

 Richard L. Buyrn for appellant. 

 Shelly R. James, Assistant Attorney General 

(Mark L. Earley, Attorney General, on brief), 

for appellee. 

 

* Pursuant to Code § 17.1-413, this opinion is not 

designated for publication.

 Robert Alonza Harrell (appellant) was convicted in a jury 

trial of attempting to possess cocaine. On appeal he contends the 

trial court erred by failing to give the jury an entrapment 

defense instruction. We disagree and affirm his conviction. 

I. 

 On appeal, we must view the evidence "in the light most 

favorable to the theory of entrapment" to determine if the 

evidence could have supported a finding of entrapment. Neighbors 

v. Commonwealth, 214 Va. 18, 19, 197 S.E.2d 207, 208 (1973); 

accord Lynn v. Commonwealth, 27 Va. App. 336, 344, 499 S.E.2d 1, 

4-5 (1998), aff'd, 257 Va. 239, 514 S.E.2d 147 (1999). 
 Viewed in the light most favorable to appellant, on the night 

of March 22, 1996, appellant and a friend drove to the MacDonald 

Manor area of Chesapeake to find appellant's son. He testified 

that he was not looking for drugs that evening. At approximately 

10:40 p.m. appellant parked his car, got out and yelled at two men 

on the street corner, a known drug area, whether they had seen his 

son Tion. The men on the street corner were undercover police 

officers conducting a reverse sting operation. The undercover 

officers responded that Tion was not around, and appellant began 

toward a friend's house. As he was walking away from the corner, 

one of the undercover officers, Detective Hammond (Hammond), 

called out to him and initiated a conversation. Hammond was 

dressed in the manner of a drug dealer and spoke to appellant as 

if he was a drug dealer. Appellant did not "think he was a police 

officer." As Hammond approached, he showed appellant what 

appeared to be drugs. Appellant gave Detective Hammond twenty 

dollars and received the drugs in return. Appellant admits that 

he purchased the drugs claiming "I was weak at that time" and "was 

just being vulnerable." 

 Appellant argues that the undercover officers tricked him 

into believing that they were drug dealers selling "crack 

cocaine."1 He was not the instigator of the transaction and but 

 1

 The "crack cocaine" was actually macadamia nuts coated 

with flour. 

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for the police actions, he would not have bought the "crack 

cocaine." 

 Appellant was arrested later that evening and charged with 

attempting to possess crack cocaine. At trial, appellant 

requested an instruction on entrapment.2 The trial court refused, 

stating there was no evidence that the officers originated the 

criminal intent in the mind of the defendant. They merely 

presented an opportunity which appellant took. 

 2

 Appellant's proposed jury instruction read: 

Entrapment is the origination and 

planning of an offense by an officer of the 

law and his procurement of its commission by 

one who would not have committed it except 

for the trickery, persuasion or fraud of the 

officer. Where a person intends to and does 

commit the crime, the fact that officers of 

the law provided a favorable opportunity 

for, aided or encouraged the commission of 

the offense is not entrapment. If you 

believe: 

(1) That the defendant had no previous 

intent or purpose to commit the crime; 

and 

(2) That an officer of the law, 

directly or through his agents, 

originated in the mind of the defendant 

the idea to commit the crime; and 

(3) That an officer of the law, 

directly or through his agents, caused 

the defendant to commit the crime by 

trickery, persuasion or fraud. 

Then you shall find the defendant not guilty 

even though you may believe from the 

evidence that he consented to the commission 

of the crime. 

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II. 

 The sole issue on appeal is whether the trial court erred 

in refusing to grant appellant's request for an entrapment jury 

instruction. "'[T]he trial court should instruct the jury only 

on those theories of the case which find support in the 

evidence.'" Woolridge v. Commonwealth, 29 Va. App. 339, 348, 

512 S.E.2d 153, 157 (1999) (quoting Morse v. Commonwealth, 17 

Va. App. 627, 632-33, 440 S.E.2d 145, 149 (1994)). Even though 

an instruction correctly states the law, it should not be given 

"'if it is not applicable to the facts and the circumstances of 

the case.'" Id. (quoting Hatcher v. Commonwealth, 218 Va. 811, 

813-14, 241 S.E.2d 756, 758 (1978)). Unless sufficient evidence 

exists to support giving the instruction, it is error to give 

the instruction even if the instruction correctly states the 

law. See Howard v. Commonwealth, 17 Va. App. 288, 293, 437 

S.E.2d 420, 424 (1993). The instruction "must be supported by 

more than a scintilla of evidence" which "is a matter to be 

resolved on a case-by-case basis." Woolridge, 29 Va. App. at 

348, 512 S.E.2d at 157 (citations omitted). 

 "In a jury trial, it is a trial court's function to 

determine whether there is sufficient evidence to submit the 

issue of entrapment to the jury." Schneider v. Commonwealth, 

230 Va. 379, 382, 337 S.E.2d 735, 736 (1985). 

"Entrapment is the conception and planning 

of an offense by an officer, and his 

procurement of its commission by one who 

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would not have perpetrated it except for the 

trickery, persuasion, or fraud of the 

officer." Entrapment occurs when the 

defendant's criminal conduct was the product 

of "'creative activity' [by the police] that 

implants in the mind of an otherwise 

innocent person the disposition to commit an 

offense and induce its commission in order 

to prosecute." 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 v. Commonwealth, 9 Va. App. 227, 231, 385 S.E.2d 628, 630 

(1989) (citations omitted). 

"There is nothing improper in the use, by the police, of 

decoys, undercover agents, and informers to invite the exposure 

of willing criminals and to present an opportunity to one 

willing to commit a crime." Stamper v. Commonwealth, 228 Va. 

707, 715, 324 S.E.2d 682, 687 (1985). A conviction will not be 

barred on grounds of entrapment because the police merely afford 

an opportunity to commit a crime to one already willing to 

commit it. See Schneider, 230 Va. at 382, 337 S.E.2d at 736. 

Furthermore, the fact that the undercover agents initiated 

the conversation regarding drugs does not entitle the appellant 

to a jury instruction on entrapment. See Panell v. 

Commonwealth, 9 Va. App. 170, 173, 384 S.E.2d 344, 346 (1989). 

"Encouragement or solicitation of the commission of a crime by 

one who is willing and predisposed to commit the crime does not 

constitute entrapment." McCoy, 9 Va. App. at 232, 385 S.E.2d at 

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630. A person's willing acquiescence to engage in crime does 

not constitute entrapment because he hesitated before committing 

the crime. See id. at 232, 385 S.E.2d at 630. 

When viewed in the light most favorable to appellant, the 

evidence established that two undercover officers, who appeared 

to be drug dealers, initiated a conversation concerning the sale 

of drugs. One of the undercover officers showed appellant what 

appellant believed was "crack cocaine." Upon being presented 

with an opportunity to buy what appeared to be "crack cocaine," 

appellant, without hesitation, purchased the drugs for twenty 

dollars. 

Appellant's argument that he bought the drugs only because 

he was tricked into believing the undercover officers were drug 

dealers selling drugs is insufficient to establish the requisite 

basis for an instruction on entrapment. Once appellant's 

attention was drawn to the possibility of purchasing drugs, he 

readily accepted it. There was no evidence that Detective 

Hammond coerced, cajoled, threatened or otherwise persuaded 

appellant to buy the drugs. Accordingly, we hold that the trial 

court did not err when it refused to instruct the jury on 

entrapment and affirm the trial court's decision. 

 Affirmed.

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Benton, J., dissenting. 

 "Although the Commonwealth prevailed at trial, the 

appropriate standard of review requires that we view the 

evidence with respect to the refused instruction in the light 

most favorable to [Harrell]." Boone v. Commonwealth, 14 Va. 

App. 130, 131, 415 S.E.2d 250, 251 (1992). Thus, we must view 

the evidence in the light most favorable to the theory of 

entrapment. The law is well established that "'[e]ntrapment is 

the conception and planning of an offense by an officer, and 

[the officer's] procurement of its commission by one who would 

not have perpetrated it except for the trickery, persuasion, or 

fraud of the officer.'" Falden v. Commonwealth, 167 Va. 549, 

555-56, 189 S.E. 329, 332 (1937) (quoting Sorrells v. United 

States, 287 U.S. 435, 454 (1932) (Roberts, J., concurring)). 

"Entrapment occurs when the defendant's criminal conduct was the 

product of '"creative activity" [by the police] that implants in 

the mind of an otherwise innocent person the disposition to 

commit an offense and induce its commission in order to 

prosecute.'" McCoy v. Commonwealth, 9 Va. App. 227, 231, 385 

S.E.2d 628, 630 (1989) (citation omitted). 

 "It is a general rule that where the criminal intent 

originates in the mind of the entrapping person and the accused 

is lured into the commission of a crime which [the accused] had 

otherwise no intention of committing in order to prosecute [the 

accused] therefor, no conviction may be had, though the 

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committing of the act is not affected by any question of 

consent." Ossen v. Commonwealth, 187 Va. 902, 911, 48 S.E.2d 

204, 208 (1948). "If there be conflict in the evidence as to 

whether the criminal intent originated in the mind of the 

accused or was induced or incited by the officer, then the 

solution of the question should be submitted to the jury." 

Falden, 167 Va. at 556, 189 S.E. at 332. In this case, as in 

Schneider v. Commonwealth, 230 Va. 379, 383, 337 S.E.2d 735, 737 

(1985), "the evidence, when viewed in the light most favorable 

to the theory of entrapment, was sufficient to create an issue 

thereon for the fact finder." 

 The evidence proved the police officers were standing on a 

street playing the role of drug dealers and dressed so as to 

pass for drug dealers. They talked the language of people 

trying to sell drugs. When Donnell Hassell and Harrell left 

Harrell's car to walk to a friend's house, two men, later 

identified as police officers in plain clothes, called them to 

"come here for a second." As Harrell approached them, one of 

the officers "had his hand [open] like this trying to show him 

something." 

 Harrell testified that the officer in plain clothes called 

to him, "Hold up a minute," and "presented himself as a drug 

dealer." The officer "showed [Harrell] what [Harrell] thought 

was drugs" and instigated the conversation about drugs. Harrell 

testified that the officer "came up to [him] and was talking 

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. . . and he was saying, Look. What's up. I got this." He 

testified that the officer "convinced [him] to buy it." 

 This evidence was sufficient for the jury to conclude that 

the officers actively initiated and instigated the sale of the 

cocaine by orally soliciting Harrell to come to them and 

convincing Harrell to buy the substance. Despite Harrell's 

testimony that he "had a drug problem at one time" and "was a 

little vulnerable," the jury could have reasonably inferred that 

when the officer lured Harrell to purchase the cocaine the 

officers were actively soliciting buyers. 

 Whatever may be the demerits of the 

defendant or his previous infractions of law 

these will not justify the instigation and 

creation of a new crime, as a means to reach 

him and punish him for his past 

misdemeanors. He has committed the crime in 

question, but, by supposition, only because 

of instigation and inducement by a 

government officer. To say that such 

conduct by an official of government is 

condoned and rendered innocuous by the fact 

that the defendant had a bad reputation or 

had previously transgressed is wholly to 

disregard the reason for refusing the 

processes of the court to consummate an 

abhorrent transaction. It is to discard the 

basis of the doctrine and . . . , in effect, 

pivots conviction in such cases, not on the 

commission of the crime charged, but on the 

prior reputation or some former act or acts 

of the defendant not mentioned in the 

indictment. 

 The applicable principle is that courts 

must be closed to the trial of a crime 

instigated by the government's own agents. 

No other issue, no comparison of equities as 

between the guilty official and the guilty 

defendant, has any place in the enforcement 

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of this overruling principle of public 

policy. 

Sorrells, 287 U.S. at 458-59 (Roberts, J., concurring). 

 This record contains evidence that the police did more than 

merely provide the opportunity to commit a crime, cf. Schneider, 

230 Va. at 381-82, 337 S.E.2d at 736, and did more than initiate 

a conversation about the sale of drugs, cf. Pannell v. 

Commonwealth, 9 Va. App. 170, 173, 384 S.E.2d 344, 346 (1989). 

In this case, Harrell testified that when he arrived at the 

scene of the transaction, he "was not looking for drugs. [He] 

was looking for [his] son." Thus, he produced evidence that, 

despite any past involvement with drugs, at the time in 

question, he was not at all predisposed to purchase drugs. 

Harrell did not acquire the desire to purchase drugs until the 

police "convinced" him to buy the fake drugs. This creative 

activity implanted the disposition in Harrell to commit the 

offense. See McCoy, 9 Va. App. at 231, 385 S.E.2d at 630. But 

for this intervention, Harrell, according to his testimony, 

never would have purchased crack cocaine on the date in 

question. Whether this testimony is believable is an issue that 

must be left to the jury. See Falden, 167 Va. at 556, 189 S.E. 

at 332. 

 The evidence of persuasion by the officers is significant. 

"In the numerous cases . . . which deal with entrapment the line 

of cleavage seems to be whether the inducement or incitement on 

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the part of the officer has been active or passive." Id. Based 

upon ample evidence of persuasion and inducement by the officer, 

Harrell was entitled to have the jury decide whether he was 

induced and encouraged by the officer and whether, absent that 

inducement and encouragement, he would have otherwise purchased 

the cocaine. See Ossen, 187 Va. at 911, 48 S.E.2d at 208. This 

evidence was sufficient to create a question of fact which the 

jury should have been allowed to resolve after being properly 

instructed on the law of entrapment. 

 For these reasons, I would reverse the conviction and 

remand for a new trial. I dissent. 

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