DePasquale v. State - 104 Nev. 338, 757 P.2d 367 (1988)

Rule:

Entrapment encompasses two elements: (1) an opportunity to commit a crime is presented by the State (2) to a person not predisposed to commit the act. Thus, such subjective approach focuses upon a defendant's predisposition to commit a crime.

Facts:

Four officers on the LVMPD's S.C.A.T. Unit (Street Crime Attack Team) were performing a decoy operation. Officer Debbie Gautwier was the decoy, and Officers Shalhoob, Young, and Harkness were assigned to "back-up." Officer Gautwier was dressed in plain clothes and was carrying a tan shoulder bag draped over her left shoulder. Within one of the side, zippered pockets of the bag, she had placed a $ 5 bill and $ 1 bill wrapped with a simulated $ 100 bill. The money, including the numbers of the simulated $ 100 bill, were exposed so as to be visible to persons near by; however, the zipper was pulled tight against the money so as to require a concentrated effort to remove it. Randall DeBelloy twice approached Officer Gautwier, asking for a pen and then for a piece of paper. When Officer Gautwier stated "no," DeBelloy retreated, motioned to Vincent DePasquale and to a third party, and conversed with them. The officer crossed the street, and DePasquale and DeBelloy followed her. DePasquale then called out to the officer, and DeBelloy took the money as the officer turned around. DePasquale and DeBelloy, were arrested and charged with larceny from the person. The case was tried before a jury, and both DePasquale and DeBelloy were convicted. DePasquale argued that he was entrapped, that the district court erred in its instruction to the jury on the law of entrapment, that the evidence fails to support the verdict, and that the sentence of ten years is disproportionate and, therefore, cruel and unusual.

Issue:

Did the district court err in its instruction to the jury on the law of entrapment?

Answer:

No.

Conclusion:

The court held that the jury was properly instructed on the law of entrapment. The defense of entrapment included two elements, an opportunity to commit a crime was presented by the State to a person not predisposed to commit the act. The facts, that the exposed money was presented in a realistic situation and simply presented a generally identified social predator with a logical target, suggested that DePasquale was predisposed to commit the crime charged. Lastly, the maximum sentence imposed was not unconstitutional because it was not disproportionate to the crime charged.