RENDERED: OCTOBER 2, 2020; 10:00 A.M.

NOT TO BE PUBLISHED

Commonwealth of Kentucky

Court of Appeals

NO. 2019-CA-1289-MR

HARVEY MIDDLETON APPELLANT

APPEAL FROM HARLAN CIRCUIT COURT

v. HONORABLE KENT HENDRICKSON, JUDGE

ACTION NO. 18-CR-00067

COMMONWEALTH OF KENTUCKY APPELLEE

OPINION

AFFIRMING

**   **  **

BEFORE: CLAYTON, CHIEF JUDGE; KRAMER AND MCNEILL, JUDGES.

KRAMER, JUDGE: On July 18, 2019, Harvey Middleton was convicted in Harlan 

Circuit Court of violating KRS1 218A.1412 (i.e., trafficking in a controlled 

substance in the first degree, first offense, fewer than ten (10) pills (oxycodone)). 

At trial, Middleton effectively raised the defense of entrapment; the jury was 

 

1 Kentucky Revised Statute.
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provided an instruction regarding his entrapment defense; and, in finding him 

guilty, the jury ultimately rejected his defense. On appeal, Middleton now asserts

the jury should not have been permitted to decide the issue of entrapment at all. In 

other words, he claims he should have been acquitted because, in his view, the 

Commonwealth failed to disprove entrapment, thus entitling him to a directed 

verdict.

Middleton never raised this point at trial through a directed verdict 

motion.

2

 Instead, Middleton requests palpable error review,3the essence of his 

argument being that the circuit court erred by not raising this point and acquitting 

him on this basis sua sponte. We will grant Middleton’s request for palpable error 

review because the Kentucky Supreme Court has indicated it is proper to do so in 

this context. See Mackey v. Commonwealth, 407 S.W.3d 554, 558 (Ky. 2013) 

(granting palpable error review of appellant’s unpreserved argument that a directed 

verdict was warranted based on entrapment defense). Upon review, we affirm.

To begin, entrapment is a defense delineated in KRS 505.010, which 

provides in pertinent part as follows:

(1) A person is not guilty of an offense arising out of 

proscribed conduct when:

 

2 Kentucky Rule of Criminal Procedure (RCr) 10.24 allows a defendant to make a motion for a 

directed verdict if the Commonwealth has not presented enough evidence to support a 

conviction.

3

See RCr 10.26.
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(a) He was induced or encouraged to engage 

in that conduct by a public servant or by a 

person acting in cooperation with a public 

servant seeking to obtain evidence against 

him for the purpose of criminal prosecution; 

and

(b) At the time of the inducement or 

encouragement, he was not otherwise 

disposed to engage in such conduct.

In other words, if the defendant is tricked or induced into committing 

a crime at the behest of the governmental actor and the criminal intent originates 

with the governmental actor, then a conviction for the crime is inappropriate. See 

Alford v. Commonwealth, 240 Ky. 513, 42 S.W.2d 711 (1931). Conversely, “[i]f 

the evidence is that the defendant otherwise is disposed to engage in the criminal 

activity, then inducement or encouragement does not constitute entrapment.” 

Commonwealth v. Sanders, 736 S.W.2d 338, 340 (Ky. 1987).

To obtain a directed verdict based upon entrapment, a defendant must 

establish “undisputed” evidence demonstrating a “patently clear” absence of 

predisposition. United States v. Harris, 9 F.3d 493, 498 (6th Cir. 1993); United 

States v. Tucker, 28 F.3d 1420, 1428-29 (6th Cir. 1994). And, in determining 

whether the evidence was insufficient to establish predisposition, a reviewing court 

must view the evidence in the light most favorable to the prosecution, resolve all 

reasonable inferences in favor of the prosecution, and cannot choose between

conflicting testimony or make credibility determinations. United States v. Barger, 
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931 F.2d 359, 366 (6th Cir. 1991); United States v. Silva, 846 F.2d 352, 355 (6th 

Cir. 1988); see also Commonwealth v. Benham, 816 S.W.2d 186 (Ky. 1991)

(similarly delineating the general standard for reviewing a criminal defendant’s 

motion for directed verdict in Kentucky). This is because, where conflicting 

evidence of substance exists on the question of entrapment, it is a factual issue for 

a jury to decide. See Mathews v. United States, 485 U.S. 58, 63, 108 S.Ct. 883, 

886, 99 L.Ed.2d 54 (1988); Barger, 931 F.2d at 366; Commonwealth v. Day, 983 

S.W.2d 505, 508 (Ky. 1999).

“Predisposition . . . focuses upon whether the defendant was an 

unwary innocent or, instead, an unwary criminal who readily availed himself of the 

opportunity to perpetrate the crime.” Mathews, 485 U.S. at 62, 108 S.Ct. at 886 

(internal quotation marks and citations omitted). Courts have identified five 

factors relevant to determine whether a defendant was predisposed to commit a 

crime: (1) the character or reputation of the defendant; (2) whether the initial 

suggestion of criminal activity was made by the government; (3) whether the 

defendant engaged in criminal activity for a profit; (4) whether the defendant 

expressed reluctance to commit the offense which was overcome by government 

persecution; and (5) the nature of the inducement or persuasion applied by the 

government. See, e.g., United States v. Khalil, 279 F.3d 358, 365 (6th Cir. 2002); 

United States v. Thomas, 134 F.3d 975, 978 (9th Cir. 1998); United States v. 
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Santiago-Godinez, 12 F.3d 722, 728 (7th Cir. 1993). Although none of these 

factors alone is determinative, the most important factor is whether the defendant 

exhibited a reluctance to commit the offense that was overcome by government 

inducement. Santiago-Godinez, 12 F.3d at 728; United States v. Skarie, 971 F.2d 

317, 320 (9th Cir. 1992); United States v. McLernon, 746 F.2d 1098, 1113 (6th Cir.

1984).

Keeping that in mind, the evidence adduced at trial reflected the 

following. Harvey Middleton and John4(a confidential informant) both resided in 

Harlan County. On the morning of June 13, 2017, John initiated contact with 

Middleton through Facebook Messenger. The messages the two men exchanged 

were not introduced as evidence, but John and Middleton both testified at trial 

regarding the substance of the messages: John asked if Middleton could supply

him with “roxies” (his term for oxycodone), and Middleton agreed to do so. Both 

men also testified they exchanged telephone calls afterward, during which they 

agreed John would purchase the oxycodone from Middleton at his home later that 

day.

Unbeknownst to Middleton, John had been working as a confidential 

informant for the Harlan County Sheriff’s Department. After arranging the 

narcotics transaction, John contacted Sergeant Jason Snelling at the department, 

 

4 We chose to only use the first name of the confidential informant throughout this opinion.
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advising him that he could purchase narcotics from Middleton. Snelling then met 

with John, with whom he was familiar, and he outfitted John with a digital 

recorder. 

Thereafter, Snelling provided John with a ride to effectuate the 

transaction. He could only drive John to the approximate area of Middleton’s 

home, near a “school,” because John had never before visited Middleton’s home 

and did not know precisely where Middleton lived – a point that was highlighted 

during the first two minutes of the audio recording from the controlled buy that 

was played for the jury at trial. There, while riding with Snelling, John is heard to 

say, “I don’t want to go too far up, I don’t know where he’s at.” John’s cellular 

telephone then rings; John remarks that Middleton is calling him and answers the 

call; and he and Middleton have the following relevant exchange:

JOHN: Hey, buddy, I’m at the school.

MIDDLETON: [Inaudible]

JOHN: I said I’m at the school right now.

MIDDLETON: I tried calling you [inaudible].

JOHN: I tried calling you, too. I don’t get real good 

service here. Now how far up are you up here now? 

What’s it?

MIDDLETON: I’m at, keep looking at your left side, 

and you’ll see a two, a two-mile marker. I live on 

Middleton Road.
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JOHN: Okay, you gonna be out?

MIDDLETON: I’ll [inaudible] with you.

JOHN: Are you gonna be out? My mobile, my phone 

won’t pick up far up through here, but, uh, I’m having 

my ride drop me off too, man, because you know me and 

my people don’t know you, you don’t know them, I like 

to keep things that way, but um, just give me a general 

idea about how far up from the school it is, how many 

minutes.

MIDDLETON: Two miles.

JOHN: Two miles? Alright, brother.

The entire audio recording from the controlled buy was played for the 

jury. After concluding his telephone conversation with Middleton, John is heard 

exiting the vehicle; walking for several minutes; and is eventually greeted by 

Middleton. The two men interact for approximately ten minutes. After 

exchanging small talk, Middleton is heard telling John that he could get narcotics 

“all day long”; and that if he did not have what John wanted, he could get it. When 

John inquired about Subutex, which is another narcotic, Middleton informed him 

that he could get it for John if he wanted. Consistent with the recording, Middleton 

also admitted at trial that he sold drugs to John during their interaction –

specifically, two oxycodone pills for $100; that he was guilty of trafficking in a 

controlled substance; and that if John had asked him to get the Subutex for him, he 

probably would have sold that to him, too.
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With that said, we now turn to Middleton’s entrapment defense and 

the five factors outlined above. As to the first factor, there was no evidence 

adduced either way. Middleton was not asked at trial if he had ever sold drugs 

prior to this occasion, nor was any evidence presented in that vein. 

As to the second factor, the initial suggestion of criminal activity (i.e., 

drug trafficking) was made by John, who was a confidential informant. The record 

indicates that John arranged for the purchase of narcotics from Middleton but that 

he was not specifically directed to do so by the government.

As to the third factor, Middleton contends he accumulated quantities 

of pain medication in his home, albeit illegally, for his own consumption due to his 

own issues with pain. Notwithstanding, Middleton sold John two oxycodone pills 

for $100. Therefore, Middleton did engage in criminal activity for profit.

As to the fourth factor, nothing of record indicates Middleton 

expressed any reluctance to commit the offense of trafficking. Rather, a 

reasonable jury could infer that Middleton readily complied with John’s request to 

purchase narcotics from him, considering the audio recording of the sale itself; 

Middleton’s testimony discussed previously; and the relative brevity of

Middleton’s interaction with John leading up to the sale (i.e., the first time John

contacted Middleton about purchasing narcotics from him was the morning of June 
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13, 2017; and the men completed the narcotics transaction that same day, shortly 

after 12:30 p.m.).

Lastly, regarding the nature of the inducement or persuasion applied 

by the government (i.e., the fifth factor enumerated above), Middleton asserts in 

his brief that he sold John narcotics because he believed John was suffering from 

pain and because he considered John his friend.

To be sure, tactics found by courts to be excessive in the context of 

entrapment have included appeals to sympathy, see Sherman v. United States, 356 

U.S. 369, 373, 78 S.Ct. 819, 821, 2 L.Ed.2d 848 (1958), or “preying upon the love 

and loyalty of [a] special relationship.” McLernon, 746 F.2d at 1114. But, to the 

extent that entrapment can be predicated upon a confidential informant’s appeal to 

sympathy or friendship, the evidence presented at the trial of this matter was less 

than compelling. Middleton merely testified he “assumed” John was in pain 

because that was what John had told him on the morning of June 13, 2017, in a 

Facebook message, and because he knew John had played football in high school

and had perhaps sustained injuries. As to the extent of their friendship, John and 

Middleton acknowledged they had been friends through middle school and high 

school. But, on the date of their transaction, Middleton was 38 years old, and John

did not even know where Middleton lived. Middleton also testified:
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COUNSEL: You characterized your relationship as 

“acquaintances” and you saw each other out. Did you 

regularly hang out with [] John?

MIDDLETON: No, not after high school.

COUNSEL: Did he regularly call you?

MIDDLETON: No.

COUNSEL: So, was it unusual that he called you that 

day?

MIDDLETON: Yeah, kinda.

COUNSEL: Okay. Um, and then you said that you 

knew him to have some football injuries?

MIDDLETON: Yeah, he was a good football player, I 

thought.

COUNSEL: Okay, so when he called you, what were 

you thinking?

MIDDLETON: At first, I thought he was just calling to, 

when he mentioned me, I thought he was just wanting to 

catch up on, you know, ‘cause we ain’t seen each other in 

so long. 

As discussed, for Middleton to have been entitled to a directed 

verdict, we would have to conclude that reasonable minds could not fairly reject 

his defense of entrapment. Here, viewing the evidence in the light most favorable 

to the Commonwealth with respect to the factors enumerated above, the totality of 

the evidence was such that reasonable minds might fairly find Middleton guilty 

beyond a reasonable doubt. See Commonwealth v. Sawhill, 660 S.W.2d 3 (Ky. 
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1983). Accordingly, the circuit court’s failure to grant Middleton a directed 

verdict of acquittal was not error, and we AFFIRM.

ALL CONCUR.

BRIEF FOR APPELLANT:

Karen Shuff Maurer

Assistant Public Advocate

Frankfort, Kentucky

BRIEF FOR APPELLEE:

Daniel Cameron

Attorney General of Kentucky

Stephanie L. McKeehan

Assistant Attorney General

Frankfort, Kentucky