This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. ' 480A.08, subd. 3 (1994).

STATE OF MINNESOTA

IN COURT OF APPEALS

C6-96-258

State of Minnesota,

Respondent,

vs.

Wiley Lee Crawford,

Appellant.

Filed June 18, 1996

Affirmed

Parker, Judge

Ramsey County District Court

File No. K994486

Hubert H. Humphrey III, Attorney General, 1400 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101 (for respondent)

Susan Gaertner, Ramsey County Attorney, Darrell C. Hill, Assistant County Attorney, 50 W. Kellogg Blvd., Ste. 315, St. Paul, MN 55102 (for respondent)

John M. Stuart, State Public Defender, Susan J. Andrews, Assistant Public Defender, 2829 University Avenue Southeast, Suite 600, Minneapolis, MN 55414 (for appellant)

Considered and decided by Parker, Presiding Judge, Randall, Judge, and Schumacher, Judge.

U N P U B L I S H E D O P I N I O N

PARKER, Judge

Appellant Wiley Lee Crawford was convicted of a third-degree violation of Minnesota's controlled substance laws, Minn. Stat. '' 152.01, subd. 15(a); 152.023, subd. 1(1) , 3(a); 609.05 (1994). Crawford had purchased crack cocaine on behalf of two undercover police officers. He contends that his conviction for the sale of cocaine should be overturned because the police exploited his addiction in order to induce his cooperation. We affirm.

D E C I S I O N

1. Appellate review of a postconviction proceeding is limited to determining whether there is "sufficient evidence to sustain the findings of the postconviction court." Marhoun v. State, 451 N.W.2d 323, 327 (Minn. 1990) (citing Barness v. State, 290 Minn. 509, 510, 187 N.W.2d 111, 112 (1971)). "A postconviction court's decision will not be disturbed except upon an abuse of discretion." State v. Bliss, 457 N.W.2d 385, 391 (Minn. 1990) (citing Berry v. State, 364 N.W.2d 795, 796 (Minn. 1985)). The court must view the evidence in a light most favorable to the verdict and assume that the jury believed evidence supporting the conviction and disbelieved any contrary evidence. State v. Wahlberg, 296 N.W.2d 408, 411 (Minn. 1980).

2. Crawford argues that the police conduct that led to his arrest and conviction offended due process principles. He maintains that the police initiated the transaction and overcame his reluctance through the offer of drugs to satisfy his addiction.

The United States Supreme Court has recognized that police involvement in investigating crimes may become so outrageous as to offend due process. Hampton v. United States, 425 U.S. 484, 96 S.Ct. 1646 (1976); United States v. Russell, 411 U.S. 423, 93 S.Ct. 1637 (1973). The "due process defense" is related to entrapment but distinct in its focus. Whereas entrapment focuses on the defendant's subjective "predisposition," State v. Grilli, 304 Minn. 80, 91, 230 N.W.2d 445, 453 (1975), the due process defense focuses on police conduct. See State v. James, 484 N.W.2d 799, 801 (Minn. App. 1992), review denied (Minn. June 30, 1992).

Minnesota has adopted an approach to the "due process defense" originally employed by the New York Court of Appeals. See James, 484 N.W.2d at 802. In People v. Isaacson, 378 N.E.2d 78 (N.Y. 1978), the New York Court of Appeals reversed a drug conviction under the due process defense. In that case, the police physically beat the defendant and then coerced his cooperation through unfounded threats of a long prison sentence. Id. at 79-81. In reversing the conviction, the New York Court of Appeals articulated four factors applicable to the due process inquiry:

(1) Whether the police manufactured a crime which otherwise would not likely have occurred, or merely involved themselves in an ongoing criminal activity;

(2) Whether the police themselves engaged in criminal or improper conduct repugnant to a sense of justice;

(3) Whether the defendant's reluctance to commit the crime is overcome by appeals to humanitarian instincts such as sympathy or past friendship, by temptation of exorbitant gain, or by persistent solicitation in the face of unwillingness; and

(4) Whether the record reveals simply a desire to obtain a conviction with no reading that the police motive is to prevent further crime or protect the populace.

Id. at 82-83 (citations omitted).

This court applied the Isaacson factors in State v. James, 484 N.W.2d at 802. The James court upheld a conviction obtained through a "reverse buy" operation in which an undercover officer stood in front of a house known for heavy drug trafficking and sold drugs. Id. at 800-803.

3. Crawford argues that each of the four Isaacson factors counsels reversal in his case. He argues that the police manufactured a crime because he had no intention to conduct any drug transactions prior to encountering them. He argues, further, that the police engaged in conduct repugnant to a sense of justice, overcoming his reluctance by improperly offering an addict a share of a drug transaction. Moreover, he argues, his very prosecution, in light of his minimal involvement as a go-between, indicates that the police were motivated only by the prospect of obtaining a conviction rather than protecting the populace. Minnesota precedent applying the Isaacson factors is scarce, and Crawford does not cite any cases that support his assertions.

In analyzing the first factor, the James court approved the police operation because the officer merely involved himself in ongoing criminal activity. Id. Like the crack house in James, the area where Crawford was arrested was known for ongoing drug transactions. By cruising this area to obtain drugs, the police simply involved themselves in ongoing criminal activity. The James court emphasized that the defendant had approached the undercover officer. Id. at 802. Although Crawford maintains that the police initiated the transaction, the postconviction court found otherwise, and both the record and the verdict support this finding. See Wahlberg, 296 N.W.2d at 411 (evidence must be viewed in a light most favorable to the conviction).

Even were we to assume that the police approached Crawford first, it does not follow that police conduct was repugnant to a sense of justice. See State v. Johnson, 511 N.W.2d 753, 755 (Minn. App. 1994) (government action "must go beyond mere solicitation" to establish entrapment), review denied (Minn. Apr. 19, 1994). The police did not physically abuse or threaten Crawford, as was the case in Isaacson, 378 N.E.2d at 79-81. Furthermore, nothing in the record indicates that Crawford was not free to refuse the transaction.

Nonetheless, Crawford asserts that the police overcame his reluctance by offering him drugs for his personal use. As the trial court pointed out, however, there was no evidence in the record to indicate that the police knew Crawford or that they knew he was an addict. Thus, it cannot be said that the police acted with the intent to exploit Crawford's drug addiction. See State v. Agraabante, 830 P.2d 492 (Haw. 1992) (no due process violation where police agent befriended defendant and maintained her heroin addiction over the period necessary to complete reverse sting). Furthermore, the due process defense focuses on police conduct, not the defendant's subjective set of circumstances. See James, 484 N.W.2d at 801.

The trial judge found that Crawford was not reluctant to commit the crime for which he was convicted, and the record supports this finding. Crawford's nonverbal communication by waving the police over prior to his oral communication also supports this finding by suggesting that Crawford was not only willing to engage in a drug transaction with the undercover police, but also that the transaction was likely calculated or premeditated on his part.

Finally, Crawford contends that his very prosecution indicates that the police were motivated only to obtain his conviction. Even if we assume that Crawford had no prior involvement in the ongoing crime in the area, beyond his actions as a go-between in this transaction, it does not follow that there was a due process violation. In James, the prosecution of a buyer for a small, personal-use drug purchase was upheld because the purpose of the operation was to reduce drug traffic. James, 484 N.W.2d at 802-03. In this case, the record indicates that the police were properly motivated not simply to obtain a conviction but, rather, to reduce illegal drug sales in a targeted area where there was a perceived need for proactive intervention.

The denial of Crawford's postconviction petition is affirmed.

Affirmed.