This memorandum opinion was not selected for pub lication in the New Mexico Appellate Reports. Please see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions. Please also note that this electronic memorandum opinion may contain computer-generated errors or other deviations from the official paper version filed by the Court of Appeals and does not include the filing date. IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO 1 STATE OF NEW MEXICO, 2 Plaintiff-Appellant, 3

v. NO. 32,983 4 DAVID BELKNAP, 5 Defendant-Appellee. 6 APPEAL FROM THE DISTRICT COURT OF OTERO COUNTY 7 James Waylon Counts, District Judge 8 Hector H. Balderas, Attorney General 9 James W. Grayson, Assistant Attorney General 10 Santa Fe, NM 11 for Appellant 12 Jorge A. Alvarado, Chief Public Defender 13 Allison H. Jaramillo, Assist ant Appellate Defender 14 Santa Fe, NM 15 for Appellee 16 MEMORANDUM OPINION 17 VANZI, Judge. 182 {1} The State appeals from the di strict court’s grant of a motion to dismiss in favor 1 of Defendant David Belknap, who was ch arged with two counts of distributing 2 marijuana, contrary to NMSA 1978, S ection 30-31-22(A)(1)(a) (2011). The district 3 court granted the motion on the sole basi s of normative objective entrapment. The 4 State raises two issues on appeal: (1) it was error to decide an uncorroborated, 5 factually contested entrapment defense in favor of Defendant as a matter of law; and 6 (2) if normative entrapment could have beendecided as a matter of law, it should have 7 been decided in favor of the State. Defendant counters that there was no error below 8 and, alternatively, that sin ce the facts also meet the elements of subjective entrapment, 9 we can affirm according to the “right for any reason” doctrine. See State v. Allen , 10 2014-NMCA-111, ¶ 6, 336 P.3d 1007 (internal quotation marks and citation omitted), 11 cert. denied, 2014-NMCERT-010, 339 P.3d 425. We reverse. 12 BACKGROUND 13

{2} At the hearing on his motion to dismiss for entrapment, Defendant described 14 the series of events that le d him to sell marijuana on two occasions to Marc Brusuelas, 15 a narcotics agent working undercover for the Otero County Sheriff’s Office. 16 Defendant testified that in the month l eading up to the transactions, he received 17 numerous, persistent phone calls, text me ssages, and a voice message from Martín 18 Sanchez, who was his high school classmate and former co-worker. In these 19 communications, Sanchez, who was working as a confidential informant for Agent 203 Brusuelas and the Sheriff’s Office, repeatedly asked Defendant if he could get him 1 any marijuana, though Defendant testifie d that he was only personally using 2 marijuana, was not dealing it, and had never sold drugs to Sanchez in the past. 3 Defendant mostly avoided Sanchez’s calls , but over time the communications became 4 more urgent, and Sanchez grew increasin gly angry. On one occasion, he called 5 Defendant from an unknown number and asked for marijuana, saying that his cousin 6 had back pain and was “hurti ng real bad,” which appealed to Defendant’s sympathies 7 as a victim of chronic pain himself. Bu t, despite this plea, Defendant steadfastly 8 refused to get involved. 9

{3} On October 17, 2011, Sanchez showedup at Defendant’s home unannounced, 10 which was intimidating to De fendant, who knew of Sanch ez’s reputation as “a mean 11 person,” who “likes to retaliate,” slashes people’s tires, burns people’s houses down, 12 and has physically assaulted people in the pa st. In the wake of this visit, Defendant 13 “finally caved into [Sanchez’ s] pressure” and agreed to sell him marijuana. Defendant 14 testified that he agreed to sell the drugs in order to stop the harassment from Sanchez 15 and because he felt both intimidated by and sorry for Sanchez’s cousin. In the 16 following days, Sanchez and his “cousin,” who was actually Agent Brusuelas working 17 undercover, bought $100 and $60 worth of marijuana from Defendant in two 18 transactions. 194 {4} The State’s case sought to undermine any notion that Defendant was an 1 innocent citizen, only coerced into selling drugs out of fear and sympathy. The State’s 2 only witness, Agent Brusuelas, had no direct knowledge of the nature of the 3 communications between Defendant and Sanchez, but he testified that Defendant’s 4 demeanor during both transactions was “pretty relaxed, pretty comfortable with 5 [Brusuelas’s] presence” and that Defendant’s conduct was consistent with that of a 6 drug dealer and not a person operating out of fear. The State also played an audio 7 recording of the second transaction, duri ng which Defendant can be heard inducing 8 Agent Brusuelas to purchase a larger quantity of marijuana: 9 Defendant: You just needed sixty, right? 10 Brusuelas: [Sanchez] says a forty? 11

. . . . 12 Defendant: You get a better deal. . . you get a half gram for free, 13 instead of just buying it by the gram. 14 Brusuelas: Alright. 15 Defendant: You want it for sixty then? 16 Brusuelas: Yeah, sure. I’ll take what you got. 17 Defendant: Yea cause this gets you three and a half grams and a forty 18 just gets you two, you know what I mean. You get like an 19 extra half gram for free. 205 Defendant can also be heard on the recording attempting to solicit future business 1 from Agent Brusuelas: 2 Defendant: I should be getting some better tomorrow. . . . My guy has 3 been running out lately. . . . He’s got the Washington 4 connect, bro, and like, I got Cali love, but Washington . . . 5 mountain men grow that . . . 6 Brusuelas: When are you gonna get some of that? 7 8 Defendant: Either tomorrow or the next day. . . . As soon as I get a 9 phone call I normally just send a text out and tell them 10 “goods here.” 11 Agent Brusuelas then testified that Defendant gave him his personal cell phone 12 number to set up future deals, and later, contrary to De fendant’s testimony, Defendant 13 introduced Agent Brusuelas directly to his supplier. 14

{5} The district court ultimately concluded that “[t]he State presented no evidence 15 which called Defendant’s credibility intoquestion, nor which disputed any of 16 Defendant’s assertions.” In its order granting the motion to dismiss, the court 17 expressed concern that “[p]estering someonewho was not engage d in drug sales into 18 selling drugs through intimidation, appeals topast friendship, and appeals to help 19 someone suffering from a medical conditi on does not serve to curb crime and 20 constitutes police conduct that exceeds the st andards of proper investigation.” The 21 State timely appealed. 22 DISCUSSION 236 Overview of Entrapment 1

{6} New Mexico recognizes subjective and objective forms of entrapment. State v. 2 Vallejos , 1997-NMSC-040, ¶ 10, 123 N.M. 739, 945 P.2d 957. The subjective defense 3 is available “when the criminal design origin ates with the officials of the government, 4 and they implant in the mind of an innocent person the disposition to commit the 5 alleged offense and induce its commission in order that they may prosecute.” Id. ¶ 5 6 (internal quotation marks and citation omitted). The defense is not available if the 7 defendant was already disposed to commit the crime. Id. Thus, under the subjective 8 standard, “the focal issue is the intent orpredisposition of the defendant to commit the 9 crime.” Id. (internal quotation marks and citation omitted). 10

{7} The broader, objective defense, can be demonstrated in two ways, one factual 11 and one normative: 12 [I]f a jury finds as a matter of fact that police conduct created a 13 substantial risk that an ordinary person not predisposed to commit a 14 particular crime would have beencaused to commit that crime, or if the 15 trial court rules as a matter of law that police conduct exceeded the 16 standards of proper investigation, then criminal charges should be 17 dismissed. 18 Id. ¶ 11. While factual entrapment focuses on “the likely effect of police conduct on 19 a hypothetical person not predisposed to commit the crime[,]” the focus of the 20 normative inquiry is on the standards of proper investigative conduct, particularly 217 prohibiting investigative activity that employs unconscionable methods or advances 1 illegitimate purposes. Id. ¶¶ 12, 16-18. Thus, under the normative component, 2 the district court must carefully scrutinize both the methods and purposes 3 of police conduct to determine whether police tactics offend our notions 4 of fundamental fairness, or are so outrageous that due process principles 5 would absolutely bar the government from invoking judicial processes 6 to obtain a conviction. 7 State v. Shirley , 2007-NMCA-137, ¶ 17, 142 N.M. 765, 170 P.3d 1003 (alteration, 8 internal quotation marks, and citation omitte d). In this case, the district court 9 dismissed the charges against Defendant on the ground that “the police conduct 10 exceeded the standards of proper inves tigation”—a finding of normative objective 11 entrapment as a matter of law. Since there was no eviden ce presented that the police 12 advanced an illegitimate purpose, we construethe district court’s order as a finding 13 of unconscionable methods. 14

{8} Vallejosprovides a list of helpful “indicia of unconscionability[,]” which, in 15 relevant part, includes 16 an extreme plea of desperate illness, an appeal based primarily on 17 sympathy or friendship, persistent solicitation to overcome a defendant’s 18 demonstrated hesitancy, the use of . . . physical or psychological 19 coercion to induce the co mmission of a crime, . . . unjustified intrusion 20 into citizens’ privacy and autonomy, . . . excessive involvement by the 21 police in creating the crime, [and] the manufacture of a crime from 22 whole cloth[.] 23 1997-NMSC-040, ¶ 18 (alteration, internal quotation marks, and citations omitted). 24 A finding of normative entrapment is “an extreme remedy for extreme government 258 behavior.” Id. ¶ 20. “[T]he question whether a given undercover operation is poor 1 police strategy or a misgui ded waste of taxpayer money is beyond the scope of the 2 inquiry.” Id. ¶ 21 (internal quotation marks and citation omitted). On appeal, we 3 review de novo the application of normative standards of objective entrapment. In re 4 Alberto L. , 2002-NMCA-107, ¶ 15, 133 N.M. 1, 57 P.3d 555. 5 Credibility Issues and Factual Disputes 6 {9} While “the determination of the proper standards of police investigation is a 7 question of law and policy to be decided by the courts in the first instance[,]” our 8 Supreme Court has stated that “the jury may resolve factual disputes where credibility 9 is an issue or where there is conflicting evidence pertaining to what events transpired.” 10 Vallejos , 1997-NMSC-040, ¶¶ 16, 20 (alteration, internal quotation marks, and 11 citation omitted); see also UJI 14-5161 NMRA committee commentary (“Ordinarily, 12 the judge decides the issue whether the alleged conduct, if it occurred, was acceptable 13 as a matter of law, leaving for the jury the issue of whether this misconduct did 14 occur.”). In Shirley , we applied this language to uphold the lower court’s denial of a 15 motion to dismiss for objective entrapment because the defense hinged entirely on the 16 defendant’s credibility. 2007-NMCA-137, ¶¶ 21, 30. We cite d “our general 17 understanding that the jury determines the credibility of witnesses” and rejected the 18 notion that a defendant’s uncorrobor ated testimony must be believed. Id. ¶¶ 28-29. We 19 specifically declined to adopt “theper se rule,” established in United States v. Bueno , 209 447 F.2d 903, 906 (5th Cir. 1971), which w ould have required the State to call its 1 confidential informant to the stand to directly contradict the defendant’s version of 2 events in order to survive a motion to dismiss for entrapment as a matter of law. 3 Shirley , 2007-NMCA-137, ¶¶ 25-26, 28. 4

{10} In this case, as in Shirley , Defendant presented unc orroborated testimony that 5 the police exceeded the standards of proper investigation. As in Shirley , “[w]here a 6 defendant’s claim of entrapment is unco rroborated, the question of [a d]efendant’s 7 credibility is best left tothe jury to decide.” Id. ¶ 30. We do not opine as to whether 8 a district court must be automatically re versed on appeal for weighing credibility and 9 granting a defendant’s motion on a factually contested entrapment defense as a matter 10 of law, or, as the States calls it, “i nvad[ing] the province of the jury.” See Vallejos , 11 1997-NMSC-040, ¶ 20 (“[T]he jury mayresolve factual disputes.” (emphasis added)). 12 Instead, we conclude only that the district court erred when it found that “[t]he State 13 presented no evidence which called Defendant’s credibility into question, nor which 14 disputed any of Defendant’s assertions[,]” and then ruled as a matter of law on that 15 basis. The credibility of Defendant’s unc orroborated testimony was necessarily in 16 question according to Shirley. Against Defendant’s version of events, including his 17 testimony that he was harassed by Sanchez, that he was not a drug dealer, that he was 18 operating out of fear of both Sanchez and Agent Brusuela s, and that he sought to 19 violate the law to the minimum extent po ssible, the State presented testimony that 2010 Defendant seemed “pretty relaxed, pretty comfortable” selling drugs. The State’s 1 corroborating audio recording evinced De fendant attempting tonegotiate higher 2 quantity sales and the future sales of superior product to the purportedly intimidating 3 Agent Brusuelas. This evidence plainly contradicts the thrust of Defendant’s 4 entrapment claim—that Sanchez and Brusuelas exceeded the bounds of proper 5 investigation by continually harassing and intimidating De fendant into breaking the 6 law. Thus the only apparent e xplanation for the district court’s finding that the State 7 did not challenge Defendant’s credibility or create any factual dispute is that the court 8 implicitly faulted the State for not calling Sanc hez to testify. In other words, it applied 9 the “per se” rule from Buenothat we rejected in Shirley , 2007-NMCA-137, ¶ 28. It did 10 so in error. 11 Sufficiency of the Evidence fo r an Entrapment Instruction 12

{11} The State argues that Defendant should not get a jury instruction on normative 13 entrapment absent additional proof on remand. See Vallejos , 1997-NMSC-040, ¶ 34 14 (stating that the instruction should be given “assuming the production of sufficient 15 evidence to support the defense”). We disagree. Viewing the evidence in the light 16 most favorable to Defendant, the police manufactured a crime “from whole cloth” 17 contrary to Vallejos

. Id. ¶ 18 (internal quotation marks and citation omitted). 18 Defendant’s testimony, if credited, estab lishes that the police used a confidential 19 informant with a reputation for retaliation and violence to persistently and angrily 2011 harass Defendant over the course of a month by calling him “over and over and over 1 again,” sending him unsolicited text messages from unknown phone numbers, and, 2 when these efforts failed, showing up at his home unannounced and uninvited. The 3 harassment continued despite De fendant’s steadfast refusal to engage in the sale of 4 marijuana. The State argues that “ ‘[p] estering’ does not rise to the level of 5 entrapment,” but our Supreme Court has sp ecifically cited “persistent solicitation to 6 overcome a defendant’s demonstrated hesitancy” as an example of an unconscionable 7 method. Id. While credibility issues require revers al of the district court’s decision to 8 grant Defendant’s motion as a matter of law, we find sufficient evidence to support 9 a normative entrapment instruction (UJI 14-5161) for the jury. See Vallejos , 1997- 10 NMSC-040, ¶ 34 11 Subjective Entrapment 12

{12} The parties’ final dispute is whether we can affirm the district court’s ruling as 13 a matter of law on the alternative basis of subjective entrapment. Although the issue 14 of subjective entrapment was neither argued nor considered at th e evidentiary hearing, 15 “we will uphold the decision of a district court if it is right for any reason.” Allen , 16 2014-NMCA-111, ¶ 6 (internal quotation marks and citation omitted). 17

{13} The trier of fact typically determin es whether subjective entrapment has 18 occurred by considering whether the defendant was already predisposed to commit the 19 crime. State v. Fiechter , 1976-NMSC-006, ¶ 11, 89 N.M. 74, 547 P.2d 557; Alberto 2012 L. , 2002-NMCA-107, ¶ 8. In State v. Schaublin , we stated that “[u]nder rare 1 circumstances, the issue of s ubjective entrapment may be re solved as a matter of law, 2 in which instance, the fact-finder would not consider the defendant’s predisposition.” 3 2015-NMCA-024, ¶ 12, 344 P.3d 1074, cert. denied, 2015-NMCERT-002, 346 P.3d 4 370. Despite this language, we can locate no New Mexico case that has actually 5 applied the doctrine as a matter of law, and Defendant fails to e xplain why this case, 6 which involves disputed facts, involves the “rare circumstances” alluded to in 7 Schaublin . This is not an appropriate situation to rule on subjective entrapment as a 8 matter of law, see Sherman v. United States , 356 U.S. 369, 373 (1958) (ruling on the 9 issue as a matter of law only because the Court was “not choosi ng between conflicting 10 witnesses, nor judging credibility”), particularly on appeal via application of the right 11 for any reason doctrine, see State v. Wilson , 1998-NMCA-084, ¶ 17, 125 N.M. 390, 12 962 P.2d 636 (“Appellate courts usually apply the right for any reason basis of 13 affirmance to strictly legal questions.”). Defendant’s testimony that he was not already 14 disposed to deal drugs when the investig ation began is in doubt. Accordingly, the 15 issue of subjective entrapment, like the issu e of objective entrapme nt, is for the jury 16 in this case. 17

CONCLUSION 1813 {14} The decision of the district court is reversed and remanded for proceedings 1 consistent with this Opinion. 2

{15} IT IS SO ORDERED. 3

__________________________________ 4 LINDA M. VANZI, Judge 5 WE CONCUR: 6

_________________________________ 7 JAMES J. WECHSLER, Judge 8

_________________________________ 9 MICHAEL D. BUSTAMANTE, Judge 10