MORROW V. COM.
CRIMINAL: DEFENSES (ENTRAPMENT); COMPLICITY
PANEL: PAISLEY, PRESIDING; WINE CONCURS; TAYLOR CONCURS IN RESULT ONLY
DATE RENDERED: 6/29/2007
CA affirmed Defendant’s conviction and 6 year sentence for one count of complicity to commit first degree trafficking in a controlled substance. Morrow was not entitled to an entrapment instruction. Entrapment presupposes the commission of a crime. A defendant may use entrapment as a defense when the offense arises out of proscribed conduct. KRS 505.010. In order for there to be entrapment, there must be an offense and proscribed conduct. The entrapment defense is not available when a defendant denies the underlying offense or any proscribed conduct.
TC did not err in refusing to utilize Morrow’s tendered jury instruction directing a finding of not guilty if the jury believed he was merely present at the scene of the drug transaction. The complicity instruction actually presented to the jury required them to find that Morrow aided or assisted his brother in the drug transaction. The requested defense of mere presence is implied in that instruction. There is no authority for a “mere presence” instruction.