NO. 79-63 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1980 

THE STATE OF MONTANA, 

Plaintiff and Respondent, 

VS . 

ROBERT A. KAMRUD, 

Defendant and Appellant. 

Appeal from: District Court of the Fourteenth Judicial District, 

In and for the County of Wheatland, 

Honorable Nat Allen, Judge presiding. 

Counsel of Record: 

For Appellant: 

Moses, Tolliver & Wright, Billings, Montana 

Stephen C. Moses argued, Billings, Montana 

For Respondent: 

Hon. Mike Greely, Attorney General, Helena, Montana 

Mark Murphy argued, Assistant Attorney General, Helena, 

Montana 

David R. Barnhill argued, County Attorney, Harlowton, 

Montana 

Submitted: March 24, 1980 
Mr. ~ustice Gene B. Daly delivered the Opinion of the Court. 

~efendant Robert A. Kamrud appeals from his conviction, 

following a jury trial, of the offense of criminal sale of 

dangerous drugs. 

On March 9, 1979, John Nelson and Gary Gill were employed as undercover deputy sheriffs of Wheatland County to 

investigate possible drug sales and drug use in Harlowton, 

Montana. They set up a trailer at Clark's Trailer Court on 

a space next to Lhe defendant's trailer and became friendly 

with the defendant. The officers assumed fictitious names, 

displayed and used marijuana, and also held parties to 

ingratiate themselves with persons suspected of selling or 

using illegal drugs. Nelson and Gill had obtained marijuana 

from Wheatland County Sheriff William Duncan as a part of 

their cover. They manicured this marijuana and made it 

available for smoking to some persons invited by them to 

parties at their trailer. Defendant attended one such party 

on March 10, 1979. 

Another party was had at the undercover officers' 

trailer during the early morning hours of March 17, 1979, 

after the bars had closed. Defendant did not attend this 

party, although he did appear at the door very briefly to 

recover a bottle of whiskey he had previously left at the 

officers' trailer. Officer John Nelson testified on crossexamination by defense counsel that at about 3:05 a.m. that 

morning, as the defendant was leaving with his bottle of 

whiskey, Officer Gary Gill approached the defendant and 

asked him if he could supply Gill with some "stuff." None 

was supplied. Nelson did not personally witness this 

conversation. At the time of the hearing on defendant's 

pretrial motions, Officer Gary Gill testified to the same 
effect, but he did not testify at trial. Defendant took the 

stand at trial and testified that after recovering his 

bottle of whiskey, he went back to his camper to have some 

drinks with a woman-friend. Defendant made no mention in 

his testimony of any conversation with Gill in which Gill 

approached him for drugs at that time. 

Later on the 17th, at approximately 11:30 a.m., the 

defendant and a girlfriend stopped briefly at the trailer 

occupied by Nelson and Gill and had a short conversation 

with them. Nelson testified that at that time he heard 

defendant, in his presence, ask Gill if he still wanted some 

drugs, to which Gill responded that they would see the 

defendant later that afternoon at his home. Gill testified 

to the same effect during the hearing on defendant's pretrial motions. The defendant and his girlfriend contradicted this testimony, saying that drugs were not discussed 

during this conversation. 

At approximately 4:20 that afternoon, according to 

Nelson's testimony, he and Gill went to defendant's trailer, 

where Gill requested some "stuff" and defendant gave him a 

vial containing 1.8 grams of marijuana. Defendant refused 

to take any money. Gill's testimony at the hearing on 

pretrial motions was similar. Defendant denied that the 

officers came to his trailer house that afternoon or that he 

sold or gave them any drugs. He testified that he spent the 

afternoon checking his trapline and having a beer with his 

girlfriend in the Argonaut Bar until her workshift began, 

and then drove home and went to bed and slept the rest of 

the day. 

On March 27, 1979, defendant Robert A. ~amrud was 

charged in the District Court, Fourteenth Judicial District, 
Wheatland County, Montana, with the crime of criminal sale 

of dangerous drugs in violation of section 45-9-101, MCA. 

The information charged that on March 17, 1979, at approximately 4:30 p.m. in his trailer house at Harlowton, Wheatland County, Montana, the defendant "Robert A. Kamrud gave 

away to Gary L. Gill a quantity of dangerous drugs as defined in Section 50-32-101, MCA, 1979, to-wit: marijuana, a 

Class I drug." 

On June 12, 1979, the defendant's attorney filed various pretrial motions, including a motion to dismiss the 

information on the grounds of entrapment. A hearing was 

held on these motions on June 21, 1979. Defendant made the 

contention that entrapment was established as a matter of 

law by the allegations contained in the State's affidavit of 

probable cause filed in support of its application to file 

the information and by the evidence presented at the hearing. The District Court denied defendant's motion in an 

order filed June 25, 1979, stating that entrapment had not 

been established as a matter of law but that it would present a question of fact for the jury. 

Kamrud pleaded not guilty and was tried before a jury. 

He was found guilty and was sentenced to five years in the 

Montana State Prison. 

Appellant presents several issues on appeal but we need 

consider only one: Did the District Court err in denying 

defendant's pretrial motion to dismiss on the grounds that 

entrapment was established as a matter of law? 

As a preliminary matter, the State urges that defendant 

is precluded from asserting the inconsistent defenses of (1) 

entrapment coupled with (2) a denial of having committed the 

offense. In State v. Parr (1955), 129 Mont. 175, 283 ~.2d 
1086, we held: "The rule is that the defense of entrapment 

is not available to one who denies commission of the offense." Parr, 283 P.2d at 1089, citing Annot., 33 A.L.R.2d 

883, 910. Parr involved the sale of whiskey to a minor. 

The minor, who was incarcerated in the juvenile department 

of the county jail, was given a ten dollar bill by a probation officer and instructed to purchase a bottle of whiskey 

in defendant's bar while the county attorney and state 

liquor inspector watched the transaction. The defendant 

denied having sold any whiskey to the minor. In affirming 

defendant's conviction for selling intoxicating liquor to a 

minor, we stated that the evidence did not entitle defendant 

to an instruction on the question of entrapment and noted 

further that the defendant denied having sold the liquor to 

the minor, holding that the entrapment defense was therefore 

not available. 

We followed the same rule in State v. O'Donnell (1960), 

138 Mont. 123, 354 P.2d 1105, 1107, and State v. LaCario 

(1974), 163 Mont. 511, 518 P.2d 982, 985. There are cases 

to the contrary in other jurisdictions: United States v. 

Demma (9th Cir. 1975), 523 F.2d 981; People v. Perez (1965), 

62 Cal.2d 769, 44 Cal.Rptr. 326, 401 P.2d 934. 

In the present case defendant took the stand and expressly denied that he had ever sold or given any marijuana 

to the undercover officers. The District Court nevertheless 

instructed the jury on the issue of entrapment in the words 

of our statute, section 45-2-213, MCA, and in an additional 

instruction to which the defendant did not object, Thus, 

defendant was given the benefit of instructions to which he 

was not entitled under Montana law when the entrapment 

defense was submitted to the jury, which rejected the defense in returning a verdict of "guilty." 
Although the jury, in returning their verdict of 

"guilty," found as a matter of fact that there was no entrapment, and although this Court has held, in our decisions in 

Parr and 0' Clonneli that the defense of entrapment is not 

available to one who denies commission of the offense, as 

this defendant did when he took the stand at trial, the 

specific holding in those cases was that the trial court did 

not commit error in refusing to instruct the jury on the 

question of entrapment. In the present case defendant 

contends that the District Court committed error by refusing 

to grant his pretrial motion to dismiss on grounds of entrapment after the hearing on pretrial motions. At that 

time defendant had not denied committing the acts which 

formed the basis of the offense. The testimony of Officer 

Gill at the pretrial hearing on motions was substantially 

icentical to Officer Nelson's at the trial in regard to the 

facts relating to the entrapment defense. Thus, defendant 

argues on appeal that the testimony at the pretrial hearing 

and the allegations in the State's affidavit establish 

entrapment -- as a matter -- of law. 

The entrapment defense is not a constitutional one, as 

the United States Supreme Court recognized in United States 

v. Russell (1973), 411 U.S. 423, 433, 93 S.Ct. 1637, 36 

L.Ed.2d 366, where it held that "the defense is not of a 

constitutional dimension." Therefore, we must look primarily to Montana. statutes and case law. 

The federal cases are nevertheless relevant to the 

extent that they apply the same test used in Montana. The 

Commission Comment to our statute defining entrapment, section 45-2-213, MCA, states that "[tlhe defense of entrapment 

generally follows the rule stated by the majority in the 
Sorrells case." (Sorrells v. United States (1932), 287 U.S. 

435, 53 S.Ct. 210, 77 L.Ed. 413, 86 A.L.R. 249.) Entrapment 

is, of course, an affirmative defense, and the burden of 

proving it rests on the defendant. LaCario, 518 P.2d 982, 

985; State v. White (1969), 153 Mont. 193, 456 P.2d 54, 56; 

O'Donnell, 354 P.2d 1105, 1106; Parr, 283 P.2d 1086, 1089. 

This Court has held that the defense of entrapment may 

be established as a matter of law. In State v. Grenfell 

(1977), 172 Mont. 345, 564 P.2d 171, we overturned the 

defendant's conviction of sale of dangerous drugs on the 

grounds that the defense of entrapment had been established 

as a matter of law. Montana has recognized the entrapment 

defense by case law, and it is now codified in section 45-2- 

213, MCA: 

"Entrapment. A person is not guilty of an 

offense if his conduct is incited or induced 

by a public servant or his agent for the purpose of obtaining evidence for the prosecution 

of such person. However, this section is inapplicable if a public servant or his agent 

merely affords to such person the opportunity 

or facility for committing an offense in furtherance of criminal purpose which such person has originated. " 

This Court has held: 

"This statute is consonant with earlier decisions of this Court which set forth the following element.% of entrapment: (1) Criminal intent 

or design originating in the mind of the police 

officer or informer; (2) absence of criminal 

intent or design originating in the mind 02 the 

accused; and (3) luring or inducing the accused 

into committing a crime he had no intention of 

committing. State ex rel. Hamlin, Jr. v. District Court, 163 Mont. 16, 515 P.2d 74; State 

v. Karathanos, 158 Mont. 461, 493 P.2d 326." 

State v. Grenfell, supra, 564 P.2d at 173. 

See also State v. Gallaher (19781, Mont . , 580 P.2d 

This Court has on previous occasions discussed in 

detail the matters to be considered in determining whether 

or not the entrapment defense has been established: 
"Entrapment occurs only when the criminal 

intent or design originates in the mind of 

the police officer or informer and not with 

the accused, and the accused is lured or induced into committing a crime he had no intention of committing. Only when the criminal 

design originates, not with the accused, but 

in the mind of government officers and the 

accused is by persuasion, deceitful representations, or inducement, lured into the commission of a criminal act, can a case of entrapment 

be made out. In short, there is a controlling 

distinction between inducing a person to do an 

unlawful act and setting a trap to catch him in 

the execution of a criminal design of his own 

conception. . ." State v. Karathanos (1972), 

158 Mont. 461, 493 P.2d 326, 331 (holding that 

there was no entrapment where the defendant approached a police informant in a bar and offered 

to sell her drugs, later completing the transaction). 

See also, State v. Frates (1972), 160 Mont. 431, 503 P.2d 

In Grenfell the defendant was approached by an informant, 

whom the Court characterized as a frustrated and unfulfilled 

policeman attempting to land a job as a deputy sheriff with 

the Silver Bow County sheriff's department. The informant 

and his wife had cultivated a close friendship with defendant and his wife over a period of six months. On several 

occasions within a period of four days, the informant persistently requested the defendant to procure him some drugs, 

which the defendant did with reluctance. Defendant obtained 

the drugs from two men he had worked with and knew to be 

involved with drugs. In coaxing the defendant to obtain and 

sell him drugs, the informant promised defendant that he 

could get him a job in Utah with a mining company, and that 

the trip to Utah could be financed by the profits from the 

sale of a large quantity of drugs to the informant's friend. 

In overturning defendant's conviction for selling the drugs 

to the informant on the grounds that there was entrapment as 

a matter of law, we stated that this was not a case where 
the drug informer made only a casual offer to buy and that 

the entire scheme originated in the informer's mind. 

"The record shows that Grenfell was not predisposed to commit this offense. There was 

no evidence that prior to January 26, 1975, 

Grenfell had ever used or sold drugs. Grenfell's close friendship with [the informer] 

spanned approximately six months, yet [the 

informer] testified that Grenfell never offered to sell him drugs." Grenfell, 564 P.2d 

at 173-74. 

The facts of the present case fall within the cases 

cited where we have held entrapment as a matter of law, and 

we believe that they are sufficient to establish entrapment 

as a matter of law. The criminal intent or design to sell 

marijuana did not originate with the deferlda.nt, but with the 

undercover officers Gary Gill and John Nelson, who induced 

defendant to give them a minute quantity of marijuana. The 

officers did more than merely afford Kamrud with the opportunity to commit the offense by making a casual offer to 

buy. As in Grenfell, they befriended him and approached him 

on more than one occasion for the purpose of soliciting 

drugs. 

Likewise, there was no evidence whatsoever that Kamrud 

had ever sold or offered to sell drugs to anyone prior to 

his "sale" to Gill and Nelson, which was made at their 

request; i.e., there was no evidence that he was predisposed 

to commit the offense or that the idea originated with 

defendant. This is further buttressed by the fact that the 

minute quantity of marijuana involved here, 1.8 grams, is 

not an amount that would ordinarily be exchanged by a 

person who had the criminal intent to make a sale or even a 

gift. The officers did far more than merely afford Kamrud 

with the opportunity to commit the offense--they came up 

with the whole idea. The officers established themselves as 
drug users and they themselves violated the very law with 

which defendant is charged by preparing and giving away 

marijuana supplied by the Wheatland County sheriff's department. In short, the record does not disclose that there was 

any drug traffic in Harlowton by the defendant or anyone 

else, other than that engaged in by these law enforcement 

officers. While the defendant may well have had the intent 

to possess marijuana, the idea for him to sell it or to give 

it away certainly originated with the police officers and 

not with defendant. Therefore, we hold that under these 

facts, entrapment was established as a matter of law. 

Grenfell, 564 P.2d at 173-74. 

The judgment of the District Court is reversed with 

directions to dismiss the information. 

We concur: 

, - 

Chief Justice 

%a 

Justices 

Mr. Justice Daniel J. Shea will file a specially concurring 

opinion at a later date. 
SPECIAL CONCURRENCE OF MR. JUSTICE DANIEL J. SHEA 

........................................................ 

No. 79-63 

........................................................ 

THE STATE OF MONTANA, 

Plaintiff and Respondent, 

v. 

ROBERT A. KAMRUD, 

Defendant and Appellant. 

....................................................... - 
Mr. Justice Daniel J. Shea specially concurring: 

I concur in the opinion of the majority reversing defendant's conviction and holding as a matter of law that defendant was the victim of entrapment. Although not necessary 

to the decision, I believe that the sentencing aspects of 

this case are deserving of brief mention. 

After the jury rekurned with its verdict the trial 

court set a sentencing date but did not order a presentence 

investigation. Section 46-18-111, MCA, provides that a 

presentence investigation shall be ordered by the sentencing 

judge unless the judge makes a specific determination that 

one is not needed. Here the record is silent with regard to 

a presentence investigation report. This can hardly stand 

for the proposition that the sentencing judge determined 

that a presentence investigation report was not needed. 

Thus, assuming that this Court did not reverse the conviction, because the sentencing court failed to comply with 

Section 46-18-111, MCA, the defendant would be entitled to 

be sentenced again. 

Defendant further argues that the actual sentence 

imposed was excessive in that he had never before been 

convicted of any offense and that he had been designated as 

a nondangerous offender. He adds to this argument by contending 

that the sentencing court "couched its sentencing on the 

grounds that the sheriff does not often catch a drug dealer 

in Harlo (sic) and that his personal belief was that there 

were a lot of drugs going around in Harlowton, Montana." 

This conclusion is, however, not supported by a record; the 

defendant failed to provide this court with a copy of the 

transcript of the sentencing hearing. 

If such assertions are to be made on appeal, it behooves 
counsel to provide the supporting documentation such as a 

transcript. It may well be true that defense counsel is 

right; but defense counsel also would lose his point on 

appeal because he had neglected to provide the documentation 

for his claim. Justice would certainly be the loser in such 

event.