IN THE COURT OF APPEALS 01/14/97

OF THE

STATE OF MISSISSIPPI

NO. 95-KA-01102 COA

 ROBERT BINGHAM A/K/A "SCOOBY DOG"

APPELLANT

 v.

STATE OF MISSISSIPPI

APPELLEE

THIS OPINION IS NOT DESIGNATED FOR PUBLICATION AND

MAY NOT BE CITED, PURSUANT TO M.R.A.P. 35-B

TRIAL JUDGE: HON. JOSEPH H. LOPER JR.

COURT FROM WHICH APPEALED: CHOCTAW COUNTY CIRCUIT COURT

ATTORNEY FOR APPELLANT:

KEVIN RAY NULL

ATTORNEY FOR APPELLEE:

OFFICE OF THE ATTORNEY GENERAL

BY: BILLY L. GORE

DISTRICT ATTORNEY: DOUG EVANS

NATURE OF THE CASE: CRIMINAL: SALE OF COCAINE

TRIAL COURT DISPOSITION: SALE OF COCAINE: SENTENCED TO SERVE A TERM OF

40 YRS IN THE MDOC UNDER THE SENTENCE ENHANCEMENT PROVISION
BEFORE McMILLIN, P.J., KING AND PAYNE, JJ.

PAYNE, J., FOR THE COURT:

 Robert Bingham was indicted and convicted for the sale of cocaine while in the possession of a

firearm. The trial court sentenced Bingham under the "Sentence Enhancement Provision" of the

Mississippi Code to serve a term of forty (40) years in the custody of the Mississippi Department of

Corrections. The trial court denied Bingham’s motions for JNOV or, in the alternative, a new trial,

and Bingham now appeals.

 FACTS

On April 19, 1995, Marshall Pack, an undercover agent with the Mississippi Bureau of Narcotics,

went to the home of Robert Bingham to purchase crack cocaine as part of an undercover operation

being conducted by the Mississippi Bureau of Narcotics. Agent Pack arrived at Bingham’s home in

an "undercover vehicle" being driven by Agent Charles Melvin which was equipped with audio and

video equipment. Agent Pack was wearing a body wire during the transaction with Bingham. Agent

Pack testified that Bingham sold him twelve (12) pieces of crack cocaine in exchange for two

hundred dollars ($200.00) in cash. Agent Pack positively identified Bingham at trial as being the same

person that sold him the cocaine on April 19. Agent Pack testified that Bingham was in possession of

a firearm at the time of the transaction. The substance purchased by Agent Pack was subsequently

sent to the crime lab where it tested positive as crack cocaine. The State offered the testimony of four

additional witnesses who corroborated the events testified to by Agent Pack. The State also offered

into evidence a video of the transaction taking place. Bingham testified in his own behalf claiming

that the substance he sold to Agent Pack was pine sap. The jury returned a verdict of guilty for the

sale of cocaine, and the trial court sentenced Bingham to serve a term of forty (40) years. Feeling

aggrieved, Bingham appeals on the ground that the trial court erred in failing to grant an entrapment

instruction, and on the ground that the sentence of forty (40) years was cruel and unusual thus

violating the Eighth Amendment.

ANALYSIS

I. DID THE TRIAL COURT ERR IN DENYING BINGHAM’S REQUEST FOR AN

ENTRAPMENT INSTRUCTION?

Bingham contends that he was entitled to an entrapment instruction, and that failure of the lower

court to grant one constitutes reversible error. Bingham argues that the trial court denied his request

for an entrapment instruction because he did not admit to the crime charged. Bingham contends that

such denial is contrary to state law. The State responds that the entrapment instruction was denied

not because Bingham had denied the charge against him but, rather, because there was not "one whit

of evidence from which a reasonable hypothetical juror could have logically and reasonably found

that Bingham was entrapped." The State submits that the Mississippi Bureau of Narcotics’ agents

merely went to Bingham’s house and supplied him with an opportunity to sell cocaine.

We agree with Bingham’s assertion that an entrapment instruction cannot be denied because a
defendant fails to admit the crime charged. Traditionally, Mississippi had required such an admission

as a condition of obtaining the instruction. Hopson v. State, 625 So. 2d 395, 399 (Miss. 1993). The

Mississippi Supreme Court, however, has abolished this requirement and in so doing has stated that a

defendant is not "hereinafter" precluded from "asserting entrapment if he or she denies any or all of

the elements of the offense . . . ." Id. at 400. In the present case, a review of the record indicates that

the instruction was not denied because of Bingham’s failure to admit to the crime charged. As the

State correctly argues, the instruction was denied because entrapment was not supported by the

evidence.

Entrapment is defined as "the act of inducing or leading a person to commit a crime not originally

contemplated by him, for the purpose of trapping him for the offense." Id. at 399; (quoting Phillips

v. State, 493 So. 2d 350, 354 (Miss. 1986) (quoting McLemore v. State, 125 So. 2d 86, 91 (Miss.

1960))). Entrapment is an affirmative defense and must be proved by the defendant. Id. (citation

omitted). "If the defendant already possessed the criminal intent, and the request or inducement

merely gave the defendant the opportunity to commit what he or she was already predisposed to do,

entrapment is not a defense. Id. (citation omitted). Thus, two requirements must be met to

successfully raise entrapment as a defense: (1) "proof of government inducement to commit the

criminal act or acts;" and (2) "that the defendant lacks the predisposition to commit the criminal

acts." Hopson, 625 So. 2d at 400 (citations omitted).

In the present case, we are presented with the question of whether Bingham was entitled to an

entrapment instruction. Consistent with the standard of review for the denial of other instructions, the

Mississippi Supreme Court requires that, in reviewing whether an entrapment instruction should have

been given, the accused "be given the benefit of all doubts about the evidence." King v. State, 530

So. 2d 1356, 1359 (Miss. 1988) (citations omitted). An instruction should only be refused when "the

evidence is so one-sided that no reasonable juror could find" entrapment. Id. A defendant is entitled

to have an instruction on his theory of the case submitted to the jury if there is evidence to support it.

See Payton v. State, 642 So. 2d 1328, 1335-36 (Miss. 1994).

Here, not only was there no evidence to support Bingham’s theory of entrapment but Bingham does

not even mention entrapment until he requests an entrapment instruction after he has rested his case.

Bingham testified in his own behalf and not once was there testimony regarding the possibility of

entrapment. Bingham’s counsel posed no questions to Bingham or any of the State’s witnesses that

even slightly alluded to entrapment being an issue in this case. Bingham clearly did not meet his

burden of proof in support of an entrapment instruction. A review of the record reflects that Bingham

took the initiative, as well as the $200.00, and supplied the undercover agent with crack cocaine after

retrieving the contraband from inside his house. Furthermore, the testimony from Agent Pack as well

as from Bingham revealed that Bingham told Pack that he could get whatever Pack needed because

he did not ever run out of dope. There seems to be no doubt from the facts developed in the record

that Bingham already possessed the criminal intent to sell cocaine, and that the request by Agent

Pack to sell Pack cocaine merely gave Bingham the opportunity to do that which he was already

predisposed to do. As such, we find Bingham’s argument to be without merit and therefore affirm the

trial court’s denial of an entrapment instruction.

II. DID THE TRIAL COURT’S ENHANCED SENTENCE OF FORTY (40) YEARS

VIOLATE BINGHAM’S EIGHTH AMENDMENT RIGHT AGAINST CRUEL AND
UNUSUAL PUNISHMENT?

Bingham contends that his forty (40) year sentence is disproportionate to the offense and excessive

under the circumstances. Bingham compares his case to Hopson v. State in which the court sentenced

the defendant to thirty (30) years for the offense of possession of cocaine with the intent to deliver.

Hopson v. State, 625 So. 2d 395, 405 (Miss. 1993). Bingham argues that Hopson was found to be in

possession of sixteen (16) ounces of cocaine worth $100,000.00 while he [Bingham] only had 1.18

grams worth $200.00. Bingham contends that, in looking at his case and that of Hopson, his sentence

was clearly disproportionate. Bingham argues further that his case did not involve an act of violence,

nor were there allegations that Bingham was a major drug trafficker as was the case in Hopson.

Bingham also contends that his lengthy sentence was given because he decided to exercise his

constitutional right to a trial instead of accepting a plea bargain. Bingham argues that impropriety is

evident by the fact that the trial judge was aware that a plea bargain of fifteen (15) years was offered

and denied, and that the sentence imposed in this case is almost three (3) times the sentence offered

in the State’s plea bargain. Bingham states that "[g]iven the disparity in the offer and the resulting

sentence, the inference may be made that Bingham received this sentence as punishment for

exercising his right to a trial."

The State responds that the sentence was not disproportionate as it fell well within the limits

prescribed by statute for delivery of cocaine and possession of a firearm. The State also states that

there is no basis on which to infer that the sentence was a result of Bingham’s refusal to plead guilty.

We agree.

The Mississippi Code provides that the maximum penalty for the sale of cocaine is thirty (30) years

incarceration and a fine of one million dollars ($1,000,000.00). Miss. Code Ann. § 41-29-139(b)(1)

(1972). Additionally, the Mississippi Code contains a sentence enhancement provision in which a

person possessing a firearm either at the time of the offense or at the time of arrest may be punished

by a term of imprisonment twice that authorized by section 41-29-139. Miss. Code Ann. § 41-29-152

(Supp. 1996). The Mississippi Supreme Court has long held that "a trial court will not be held in

error or held to have abused its discretion if the sentence imposed is within the limits fixed by

statute." Edwards v. State, 615 So. 2d 590, 597 (Miss. 1993) (citing Johnson v. State, 461 So. 2d

1288, 1292 (Miss. 1984)); see also Barnwell v. State, 567 So. 2d 215, 221 (Miss. 1990) (save for

instances where the sentence is "manifestly disproportionate" to the crime committed, extended

proportionality analysis is not required by the Eighth Amendment); Corley v. State, 536 So. 2d 1314,

1319 (Miss. 1988); Reed v. State, 536 So. 2d 1336, 1339 (Miss. 1988).

However, where a sentence is "grossly disproportionate" to the crime committed, the sentence is

subject to attack on the ground it violates the Eighth Amendment prohibition of cruel and unusual

punishment. Edwards, 615 So. 2d at 598 (citing Wallace v. State, 607 So. 2d 1184, 1188 (Miss.

1992); Fleming v. State, 604 So. 2d 280, 302 (Miss. 1992)). In determining proportionality, the

Mississippi Supreme Court has followed the three-prong test set forth in Solem v. Helm, 463 U.S.

277 (1983). Edwards v. State, 615 So. 2d 590, 598 (Miss. 1993). "The elements are: (1) the gravity

of the offense and the harshness of the penalty; (2) comparison of the sentence with sentences

imposed on other criminals in the same jurisdiction; and (3) comparison of sentences imposed in
other jurisdictions for commission of the same crime with the sentence imposed in this case." Id.

Applying the facts of this case to the criteria outlined in Solem, Bingham’s sentence is not

disproportionate to the offense he was found guilty of committing. First, the offense of sale of

cocaine is serious especially in light of the fact that Bingham was in possession of a firearm at the

time of the transaction. Although Bingham denied having a gun when he sold Agent Pack the

cocaine, we are satisfied with the testimony presented by the State that both Agent Pack and Agent

Holland saw the gun in Bingham’s back pocket when the transaction occurred. The State’s case is

strengthened further by the testimony of Sheriff Hutchinson that Bingham is known to have

possessed a similar weapon on previous occasions. Also, the maximum penalty that could have been

imposed in this case was sixty (60) years. Bingham received forty (40) years which is two-thirds of

the maximum he could have received.

Secondly, Bingham’s comparison to the sentence imposed in Hopson is not persuasive. Granted,

Hopson possessed significantly more cocaine than did Bingham, however, Hopson did not fall under

the enhancement statute as did Bingham. Other than Hopson, Bingham offers no other arguments

that his sentence is not in line with sentences imposed for the same crime on other criminals in this

jurisdiction. Also, Bingham makes no argument that his sentence is not in line with sentences

imposed for the same crime in other jurisdictions. The Mississippi Supreme Court has held that "[i]n

the complete absence of facts showing that [the appellant’s] sentence exceeds others imposed for the

same crime in either the same or other jurisdictions, it is impossible for this Court to hold the second

and third prongs of the Solem test favor reversal of [the Appellant’s] sentence." Id. (quoting Wallace

v. State, 607 So. 2d 1184, 1189 (Miss. 1992)).

As to Bingham’s allegation that his sentence was increased due to his denial of the plea bargain, we

find no evidence to warrant such a conclusion. The fact that the sentence imposed was greater than

the sentence initially offered by the State, and the fact that the trial judge was aware that Bingham

turned down the fifteen year plea bargain is not conclusive of Bingham’s allegation that he is being

punished for exercising his right to trial. Johnson v. State, 666 So. 2d 784, 797 (Miss. 1995). In

Johnson, the Mississippi Supreme Court held:

A heavier sentence will not be an abuse of discretion and does not violate any right of the

defendant "[w]here a lenient sentence is proposed in pretrial plea bargain negotiations, and

where after rejecting same defendant is found guilty by a jury, and where before

imposition of sentence the Circuit Judge is presented with evidence of aggravating

circumstances relevant to sentencing not known to him at the time of the original plea

bargain negotiations, and where in fact the Circuit Judge imposes a heavier sentence than

was proposed at the time of plea bargain and in fact bases imposition of the heavier

sentence upon the information of aggravating circumstances of which he has been newly

made aware, and where the heavier sentence has not been imposed upon the accused in

whole or in part as a

penalty for his exercise of his constitutional right to trial by jury."

Id. at 796 (quoting Pearson v. State, 428 So. 2d 1361, 1365 (Miss.1983)). There is absolutely

nothing in the record which reflects that the court was involved in the plea negotiations between the
Appellant and the State, or that the court imposed a heavier sentence because the Appellant exercised

his right to a constitutional trial. The court was merely following the dictates of sections 41-29-

139(b)(1) and 41-29-152 of the Mississippi Code which provides that a person convicted for the sale

of cocaine while in possession of a firearm may be sentenced to serve a maximum term of

imprisonment of sixty (60) years. Miss. Code Ann. §§ 41-29-139(b)(1), -152 (1972 & Rev. 1994).

We therefore find that the court had legitimate reason to sentence Bingham to serve a term of forty

(40) years.

We conclude that the trial court was not in error and did not abuse its discretion because the sentence

imposed was within the limits fixed by statute and not so grossly disproportionate nor shockingly

excessive as to warrant its reversal.

THE JUDGMENT OF THE CIRCUIT COURT OF CHOCTAW COUNTY OF

CONVICTION OF SALE OF COCAINE WHILE IN POSSESSION OF A FIREARM AND

ENHANCED SENTENCE OF FORTY (40) YEARS IN THE CUSTODY OF THE

MISSISSIPPI DEPARTMENT OF CORRECTIONS IS AFFIRMED. ALL COSTS OF THIS

APPEAL ARE TAXED TO CHOCTAW COUNTY.

FRAISER, C.J., BRIDGES AND THOMAS, P.JJ., BARBER, COLEMAN, DIAZ, KING,

McMILLIN, AND SOUTHWICK, JJ., CONCUR.