No. 13165 IN THE SUPREME COURT OF THE STATE OF MONTANA

THE STATE OF MONTANA, Plaintiff and Respondent,

GREGORY ALLEN GRENFELL, Defendant and Appellant.

Appeal from: District Court of the Second Judicial District Honorable James D. Freebourn, Judge presiding. Counsel of Record: For Appellant: J. Brian Tierney argued, Butte, Montana For Respondent: Hon. Mike Greely, Attorney General, Helena,

Montana Gary Winston argued, County Attorney, Butte,

Montana Nadine Scott argued, Butte, Montana

Submitted: January 12, 1977 Decided: Filed:

## -MY11. 

### 1977Mr. :JusticeDaniel J. Shea delivered the Opinion of the Court.

Defendant Gregory Grenfell was convicted on one

### d four counts of selling dangerous drugs inviolation of section 54-132, R.C.M. 1947, inthe district court, SilverBow County. He was sentenced to 10years inprison. Defendant raises several issues in this appeal but only the issue of entrapment isnecessary for the decision inthis case. He claims there was entrapment as a matter of law. We agree. The charges against Grenfell arose inButte, Montana, from four sales of drugs toBillVerrall, an informer for the Silver Bow County sheriff's department, on January 26, 27, 28, and 29, 1975. Grenfell and Verrall met inthe fallof 1974. Thereafter Verrall and hiswife cultivated a close friendship with Grenfell and his wife.The facts show Verrallwas a frustrated and unfulfilled policeman having drifted fromjob tojob over a period of several years. He started as a Montana State Prison guard but was terminated after sixmonths. Hisemployment with the Butte police force in 1971was terminated before his probationary (sixmonth) period expired. Verrall then went to the state of Washington and there worked for the King County highway patrol as a private security guard, but left after only one week. In 1973he was a police officer forBoulder, Montana, but left after only four months employment, during which he was officially charged with assault while on duty. Verrall then driftedback and forth from Montana to the state of Washington, not having any steadyjob and drawing periodic welfare assistance forhimself and family.

### erra all's interest inbeing a deputy sheriff for SilverBow County dates back to 1969 when he asked the then sheriff for a job as a deputy but was refused. In 1974, when a new sheriff was elected, but before he took office, Verrall approached him and told him that he would buy drugs for him. Atthe time of the incidents involved in this case, Verrall had filed an application tobe a deputy sheriff for Silver Bow County, and although he had not been officiallyhired, he was working as a drug purchaser for the sheriff

## 's office. On January 26, 1975, Verrall called Grenfell and asked him for marijuana. Grenfell testifiedhe suggestedbeer instead, but Verrall said he was "uptight" and needed marijuana. Grenfellwent to

a local tavern and inquired about two men he had worked with and knew tobe involved with drugs. After learning they lived ina trailer court in the "Country Club area", he obtained some hashish and gave it toVerrall. Verrall later delivered the hashish to the sheriff. This transaction comprised count one of the Information,

on which Grenfell was acquitted. On January 27, 1975, Verrall calledGrenfell's home many times. Grenfell atfirsttold hiswife totellVerrall he was not athome. Later, Grenfell returned the call. Verrall told him the hashish gdve him a good night's sleep and he had a friendwho wanted some LSD. C-renfell saidhe did not know where toget LSD, but he would talk to the men who gave him the hashish. He obtained $20 fromVerrall and bought $10 worth of LSD from his suppliers. Grenfell gave the LSD and the $10 change ,.,tot.Verrall. Verrall delivered the LSD to the sheriff. These events were the basis for count two of the Information, on which Grenfellwas acquitted.On January 

### 28, 1975, Verrall drove to Grenfell's home and asked Grenfell towork on his automobile. Atthat time a "partnership" was discussed whereby they would purchase a large quantity of LSD to sellto Verrall's friend ata profit to finance a trip to Utah to obtainwork. (Verrall promised Grenfellhe could get him ajob inUtah with a mining company and had even helped him fillout the application forms). Grenfell then went tohis suppliers inthe trailerhome to ask the price of LSD ifbought inbulk. He obtained some hashish and amphetamines which he later gave toVerrall. The "big buy1'was set for January 29, 1975. These events comprised count three of the Information, on which Grenfell was acquitted. After Verrall left, Grenfell returned to the suppliers and obtained a small amount oflhashishforhis own use. The ultimate objective of the sheriff's officewas to catch the suppliers to Grenfell, although thiswas never accomplished, due to a failure of the sheriff's office to follow Grenfell to the trailerhome where the suppliers lived. On the morning of January 

### 29, 1975, Grenfell, knowing this

was the day of the "big buy", was nervous and reluctant togo through with the purchase. He tried to smoke the hashish he had purchased the night before, but it hurt his throat. Verrall tried tocalm him down during a telephone conversation by assuring Grenfell everything would be allright and tellinghim they needed the money for the trip to Utah. Verrall arrived atGrenfell's home that afternoon with $900. The billshad been photocopied and the serialnumbers recorded by the sheriff's office. Grenfell's home was under surveillance.Verrall gave Grenfell 

### $475 of the $900. Grenfell left and made a purchase of 320 LSD pills. (The sheriff's office failed in its assignment to follow Grenfell and catch his suppliers). When Grenfell returned to his home he gave the 

### LSD pills and $43 in change toVerrall. They split the rest of the $900 equally. As Verrall leftwith the pills, he signaled the sheriff's deputies who quickly arrested Grenfell. This final transaction,

a transfer of the pills from Grenfell toVerrall, comprised count four of the Information. Grenfellwas convicted on this count. He appeals. Montana's entrapment statute, section 94-3-111, R.C.M. 1947, provides: "A person 

### isnot guilty of an offense ifhis conduct is incited or induced by a public servant, orhis agent for the purpose of obtaining evidence for the prosecution of such person. However, this section is inapplicable if a public servant orhis agent, merely affords to such person the opportunity or facility for committing an offense in furtherance of criminalpurpose which such person has originated." This statute 

### is consonant with earlier decisions of this Court which set forth the following elements of entrapment: (1) Criminal intent or design originating inthe mind of the police officer or informer; (2) absence of criminal intent or design originating in the mind of the accused; and (3) luring or inducing the accused into committing a crime he had no intention of committing. Stateex rel. Hamlin, 

### Jr. v. District Court, 163Mont. 16, 515 P.2d 74; State

v. Karathanos, 158Mont. 461, 493 P.2d 326. The record shows 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 friendshipwith Verrall spanned approximately sixmonths, yet Verrall testified that Grenfellnever offered to sellhim drugs. The

one time Grenfell admitted trying to smoke hashish he saidhe quit because it hurt his throat. This 

### isnot like Statev. Harney, 160Mont. 55, 

### 499 P.2d 802, where the drug informer made only a casual offer tobuy drugs from the defendant. Here, the entire scheme originated in

### erra all's mind. His telephone callto Grenfell on January 

### 26, 1975, was the beginning of four consecutive days of persistent efforts to involve Grenfell indrugs, solely for thepurpose of gathering evidence against him. Whenever Grenfell showed reluctance, Verrall coaxed him with visions of Verrall's personal need and Grenfell's need tohave money totravel toUtah to find a job. Had it not been forVerrall'

### s creative activities, this offense would never have been committed. The conviction isreversed and ordered dismissed.

Chief Justice \