Appeal from the Iowa District Court for Des Moines County, Mary Ann Brown, Judge.
The opinion of the court was delivered by: Danilson, J.
Defendant appeals his convictions on three counts of delivery of a controlled substance. AFFIRMED.
Considered by Eisenhauer, C.J., and Danilson and Bower, JJ.
Defendant Emmanuel Davis appeals his convictions on three counts of delivery of a controlled substance (cocaine base), in violation of Iowa Code section 124.401(1)(c) (2011). He claims the district court should have granted his motion for judgment of acquittal because the State did not adequately disprove his defense of entrapment. We conclude the evidence is sufficient to uphold the verdict. In a supplemental pro se brief, Davis claims he received ineffective assistance because his defense counsel did not investigate jury misconduct, or call the witnesses Davis wanted to have testify at his trial. We affirm Davis's convictions.
I. Background Facts & Proceedings
Through mutual acquaintances, Davis first met Patrick Loper in June 2011 at Steamboat Days in Burlington, Iowa. Loper had a long criminal history and a history of using illegal substances.*fn1 In the summer of 2011, Loper was also a paid confidential informant for the Southeast Iowa Narcotics Task Force. For each purchase of illegal substances Loper made for the Task Force, he was paid fifty dollars.
On August 31, 2011, Loper was given forty dollars by the Task Force, and he purchased crack cocaine from Davis. On September 1, 2011, Loper purchased forty dollars worth of crack cocaine from Davis. He made another purchase of fifty dollars worth of crack cocaine from Davis about forty minutes later on that same day. All of these transactions were monitored by the Task Force. Loper was searched before and after the transactions, and he wore a microphone that permitted officers to listen to his conversations.
Davis was charged with three counts of delivery of a controlled substance (cocaine base). He did not deny that the purchases by Loper had occurred, but he raised a defense of entrapment. Entrapment occurs "when a law enforcement agent induces the commission of the offense, using persuasion or other means likely to cause law-abiding persons to commit it." State v. Babers, 514 N.W.2d 79, 83 (Iowa 1994).
At Davis's criminal trial, Loper testified that when he first met Davis at Steamboat Days, Loper told him he was interested in getting some crack, and Davis gave him his telephone number. Loper stated he called Davis less than twenty times between then and September 1, 2011. He stated he saw Davis at the Sweet Corn Festival in West Point in August, and may have seen him at Wal-Mart, but denied running into him more than that. Loper testified he had possibly talked to Davis about helping him find work. At the close of the State's case Davis made a motion for judgment of acquittal, and this was denied by the district court.
Davis testified and gave a very different account of his interactions with Loper between when they met at Steamboat Days and when the delivery of crack cocaine was made. Davis testified Loper called him three or four times a day asking for help to find crack cocaine. He also testified, "it seems like I was running into him everywhere," like the Sweet Corn Festival, Wal-Mart, and the gas station. Davis stated that Loper told him that if Davis helped him get some crack cocaine he would help Davis get a job. Davis testified that he believed Loper was "aggressive, as in being persistent," about the sale of drugs. He stated he made twenty dollars in profit from each of the sales. After Davis's testimony the court denied his renewed motion for judgment of acquittal.
The district court instructed the jury on entrapment in an instruction that basically followed the language of Iowa Criminal Jury Instruction 200.17. The jury returned verdicts finding Davis guilty of three counts of delivery of a controlled substance. Davis was sentenced to a term of imprisonment not to exceed ten years on each count, to be served concurrently. He appeals his convictions.
Davis contends the district court should have granted his motion for judgment of acquittal. He points out that because he raised a defense of entrapment, the State had the burden to disprove this affirmative defense. He claims the State did not adequately show that his delivery of crack cocaine to Loper was not the result of entrapment. He claims Loper was relentlessly manipulative and used Davis's desperate need for money against him.
As noted above, a defendant is entrapped into committing a crime "when a law enforcement agent induces the commission of the offense, using persuasion or other means likely to cause law-abiding persons to commit it." Babers, 514 N.W.2d at 83. "[E]ntrapment must involve the use of excessive incitement, urging, persuasion, or temptation by law enforcement agents." Id. If a person's conduct merely affords a defendant the opportunity to ...