COURT OF APPEALS OF VIRGINIA 

Present: Judges Coleman, Willis and Bray 

Argued at Norfolk, Virginia 

JAMES MICHAEL KIRBY 

v. Record No. 1627-94-1 MEMORANDUM OPINION* BY 

 JUDGE RICHARD S. BRAY 

COMMONWEALTH OF VIRGINIA JULY 25, 1995 

FROM THE CIRCUIT COURT OF THE CITY OF HAMPTON 

John D. Gray, Judge 

 James S. Ellenson for appellant. 

 Thomas D. Bagwell, Assistant Attorney General 

(James S. Gilmore, III, Attorney General, on 

brief), for appellee. 

 James Michael Kirby (defendant) was convicted by a jury of 

conspiring to possess marijuana with intent to distribute in 

violation of Code §§ 18.2-256 and 18.2-248.1(a)(3). Defendant 

complains on appeal that the trial court erroneously (1) limited 

introduction of evidence pertinent to an entrapment, and (2) 

declined to instruct the jury on the defense. We disagree and 

affirm the conviction. 

 The parties are fully conversant with the record, and we 

recite only those facts necessary to explain our holding. Under 

familiar principles of appellate review, the evidence is viewed in 

the light most favorable to the Commonwealth, granting to it all 

reasonable inferences fairly deducible therefrom. Traverso v. 

Commonwealth, 6 Va. App. 172, 176, 366 S.E.2d 719, 721 (1988). 

 While participating in an inpatient drug treatment program, 

defendant became acquainted with Carey McCormick, a police 

 

 *Pursuant to Code § 17-116.010 this opinion is not designated 

for publication. 
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informant. Over a period of several days, McCormick repeatedly 

inquired of defendant's interest in purchasing "a large amount of 

marijuana" upon his release. Although defendant initially declined 

McCormick's overtures, he eventually agreed to the proposal, "[t]o 

make some money." 

 Shortly after defendant's release, McCormick arranged a 

meeting between defendant, Hampton Police Officer Charles Butler, 

then posing as a narcotics distributor, and himself. Defendant 

advised Butler that he "couldn't buy the twenty pounds of 

marijuana, . . . could only come up with money for ten pounds, but 

. . . wanted the ten pounds." After confirming the price, quality, 

weight, and origin of the marijuana, the meeting was adjourned to 

afford defendant an opportunity to obtain the necessary funds. 

Later that same evening, defendant, Steven Lynn Kirby, defendant's 

brother, and Butler met at the same location. The purchase price 

was again discussed, and defendant and Steven together agreed to 

purchase six pounds of marijuana from Butler. 

 At a pretrial suppression hearing, defendant argued that the 

contemplated drug transaction had resulted from police entrapment, 

which required suppression of all related evidence. Substantial 

evidence relevant to the issue was developed at the hearing and 

argued by counsel, after which the trial court denied the motion. 

Immediately prior to trial, the court reminded counsel that 

evidence and argument relative to entrapment had been fully 

considered at the earlier hearing and precluded defendant from 

again pursuing the defense. 
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 "The admissibility of evidence is within the broad discretion 

of the trial court, and a ruling will not be disturbed on appeal in 

the absence of an abuse of discretion." Blain v. Commonwealth, 7 

Va. App. 10, 16-17, 371 S.E.2d 838, 842 (1988) (citing Coe v. 

Commonwealth, 231 Va. 83, 87, 340 S.E.2d 820, 823 (1986)). "An 

appellant must demonstrate that the excluded evidence is relevant 

and material and that the party was entitled to have it introduced 

in order to establish on appeal that the trial court erred by 

excluding it." Toro v. City of Norfolk, 14 Va. App. 244, 254, 416 

S.E.2d 29, 35 (1992) (citation omitted). 

 "The principles governing our review of a trial court's 

decision refusing a jury instruction are well-settled." Brandau v. 

Commonwealth, 16 Va. App. 408, 411, 430 S.E.2d 563, 564 (1993). If 

credible evidence in the record supports the defendant's theory of 

defense, the trial judge may not refuse to grant a proper, 

proffered instruction. Delacruz v. Commonwealth, 11 Va. App. 335, 

338, 398 S.E.2d 103, 105 (1990). "'[A]n instruction, however, must 

be supported by more than a mere scintilla of evidence.'" Brandau, 

16 Va. App. at 411, 430 S.E.2d at 564 (quoting Boone v. 

Commonwealth, 14 Va. App 130, 132, 415 S.E.2d 250, 251 (1992)). 

 "'Entrapment is the conception and planning of an offense by 

an officer, and his procurement of its commission by one who would 

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

fraud of the officer.'" McCoy v. Commonwealth, 9 Va. App. 227, 

231, 385 S.E.2d 628, 630 (1989) (quoting Stamper v. Commonwealth, 

228 Va. 707, 715, 324 S.E.2d 682, 687 (1985)). "If the criminal 
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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, 9 

Va. App. at 231, 385 S.E.2d at 630 (citation omitted). Police may 

"'use . . . decoys, undercover agents and informers to invite the 

exposure of willing criminals and to present an opportunity to one 

willing to commit a crime.'" Id. at 232, 385 S.E.2d at 630 

(citations omitted). "Reluctance to engage in crime is not 

transformed into entrapment whenever a person hesitantly, but 

willingly, acquiesces in the request of a close ally to commit a 

crime." Id. 

 Here, the record provides ample support for the trial court's 

limitation of defendant's evidence. McCormick and Butler merely 

"'present[ed] an opportunity to one willing to commit a crime.'" 

Id. (citations omitted). Defendant's evidence at the suppression 

hearing did not establish that he was coerced, tricked, or 

improperly persuaded into criminal activity by the police, acting 

through McCormick or otherwise. Under such circumstances, evidence 

of an entrapment defense, accompanied by an attendant instruction, 

would have only confused the jury and diverted its attention from 

those matters properly in issue and supported by the record. See

Powell v. Commonwealth, 13 Va. App. 17, 24, 409 S.E.2d 622, 627 

(1991). Accordingly, the court correctly excluded the disputed 

evidence and instruction from the trial proceedings, and the 

conviction is affirmed. 

 Affirmed.