This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. §480A.08, subd. 3 (1996).




State of Minnesota,



Mackie Allen Potter,


Filed April 14, 1998


Amundson, Judge

Hubbard County District Court

File No. 29-KO-96-684

Hubert H. Humphrey III, Attorney General, Natalie E. Hudson, Assistant Attorney General, 1400 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101, Gregory D. Larson, Hubbard County Attorney, Hubbard County Courthouse, 301 Court Street, Park Rapids, MN 56470 (for respondent)

John M. Stuart, State Public Defender, Ann Brom McCaughan, Assistant State Public Defender, 2829 University Avenue Southeast, Suite 600, Minneapolis, MN 55414 (for appellant)

Considered and decided by Amundson, Presiding Judge, Short, Judge, and Mansur, Judge.[*]



Appellant Mackie Allen Potter challenges the district court's finding that even before being approached by an agent of the state, he was predisposed to sell drugs.


In early 1996, Ross Offerosky was incarcerated in the Hubbard County jail on a DWI. He called Hubbard County Deputy Sheriff Raymond Ball, offering to discuss information on narcotic trafficking in exchange for a deal on his DWI arrest, and made a deal. Offerosky, as an informant, supplied Deputy Ball with a list of seven people who would sell drugs such as marijuana, methamphetamine, crank, and cocaine. Potter's name was included on this list and Offerosky said Potter told him that he used and sold drugs. Offerosky met Potter at a gas station where Offerosky worked. Offerosky testified that prior to the deal with Deputy Ball he had not asked to buy nor had he bought drugs from Potter. Potter, however, testified that he only sold drugs to Offerosky because Offerosky badgered him. The inclusion of Potter's name on the list confirmed information that Deputy Ball had previously received from informants, people on the street, and intelligence that Potter appeared to be active in the drug culture and that Potter was a likely person to sell illicit drugs.

Offerosky and Deputy Ball met in Park Rapids where the Deputy gave Offerosky $60 from the Paul Bunyon Drug Task Force[1] (Task Force) buy fund to buy drugs from Potter. The sale had been previously arranged when Offerosky stopped at Potter's home earlier to tell him that if he could get drugs he should stop over at Offerosky's house. After being fit with the body transmitter,[2] Offerosky went home to await Potter's arrival with the drugs. Potter did arrive a short time later with a quarter gram of methamphetamine, which he gave to Offerosky in exchange for $60. Deputy Ball, conducting visual surveillance at the scene, saw Potter's truck turn into Offerosky's driveway and a short time later, saw him leave. However, the "wire" became disconnected and Deputy Ball was unable to hear the transaction. Offerosky and Deputy Ball met at a predetermined location where Offerosky gave the body transmitter and the small plastic bag of methamphetamine to Deputy Ball.

The next buy took place approximately one week later. Offerosky received $100 from the Task Force buy fund and was again girded with a body transmitter. Deputy Ball followed Offerosky to Potter's residence and watched the trailer court where Potter lived. He also listened to the conversation transmitted by the wire. Offerosky arrived at Potter's house around 7:00 p.m. and asked where he could get some drugs; Potter reportedly replied that he knew "somebody else that had it and it is in town. And the reason I know that because I talked to the guy earlier that day." Around 8:30 p.m., with Deputy Ball following behind, Offerosky drove Potter to the Spruce Manor Apartments in Park Rapids. Offerosky counted out the money to Potter, who went to an apartment on the upper level of Spruce Manor Apartments. There he obtained the methamphetamine from Don Lee, returning a short time later to give Offerosky the crank. Offerosky then drove Potter home.

Potter testified that he never sold drugs, and that he only facilitated the sale of drugs by taking the money and delivering the drugs. During his current probation for felony theft, Potter stated that he tested positive for contraband on a urine test. Potter also testified that he knows it is illegal to sell crank and that he was not threatened, bribed, or intimidated into selling drugs.

At a two-day jury trial, Potter asserted the defense of entrapment, but was convicted. This appeal followed.


A successful entrapment defense exists where: (1) a defendant shows by a fair preponderance of the evidence that the crime's commission was induced by the government and (2) the government subsequently fails to demonstrate beyond a reasonable doubt that the defendant was nevertheless predisposed to commit the crime. State v. Johnson, 511 N.W.2d 753, 754-55 (Minn. App. 1994), review denied (Minn. Apr. 19, 1994). "The government's action in inducing the crime must go beyond mere solicitation." Id. at 755. Merely providing a defendant with an opportunity to commit the crime is not an improper inducement. State v. Vaughn, 361 N.W.2d 54, 57 (Minn. 1985); see also, State v. Olkon, 299 N.W.2d 89, 107 (Minn. 1980), cert. denied, 449 U.S. 1132, 101 S. Ct. 954 (1981) (persuasion, badgering, or pressure by state must occur before inducement element is satisfied). When Deputy Ball asked Offerosky to purchase drugs from Potter, the government was doing no more than providing an opportunity for Potter to commit the crime.

Potter testified that Offerosky badgered him on numerous occasions to buy drugs. Because he knew where to buy drugs he took Offerosky's money and purchased them. Offerosky, however, testified that the drug transaction following the deal with Deputy Ball was "the first time I solicited [Potter] for drugs." The jury evidently found Offerosky's testimony more credible than Potter's. Weighing the credibility of witnesses is the exclusive function of the jury, and it is not within the province of this court to evaluate the credibility of trial witnesses. Dale v. State, 535 N.W.2d 619, 622 n.2 (Minn. 1995). We presume that the jury believed the state's witnesses and disbelieved any contrary evidence. See State v. Steinbuch, 514 N.W.2d 793, 799 (Minn. 1994).

The district court specifically instructed the jury on the defense of entrapment. In rejecting the entrapment defense and finding Potter guilty, the jury believed Offerosky and disbelieved Potter's testimony that he would not have obtained the methamphetamine but for Offerosky's badgering. Potter testified that he was not threatened, bribed, or intimidated into selling the illicit substance. The jury found that Potter was not coerced or deceived into committing an act that he would not have otherwise committed.

Even if there was inducement on the part of the government, the defense of entrapment fails "if the government can prove beyond a reasonable doubt that the defendant was predisposed to commit the crime." State v. Ford, 276 N.W.2d 178, 182 (Minn. 1979). The supreme court has listed some criteria which may be used to show predisposition: (1) defendant's active solicitation to commit the crime, (2) the defendant's prior criminal convictions, (3) the defendant's prior criminal activity not resulting in a conviction, (4) the defendant's criminal reputation, or (5) any other adequate means to demonstrate that the defendant was predisposed. Olkon, 299 N.W.2d at 1070.

Several factors indicate Potter's predisposition to traffic drugs. On two occasions, Potter readily responded to Offerosky's request to buy drugs. "[P]redisposition may be proved by evidence that the accused readily responded to the solicitation of the commission of a crime by the state." Id. at 108. "Thus, an agent deployed to stop the traffic in illegal drugs may offer the opportunity to buy or sell drugs and, if the offer is accepted, make an arrest on the spot or later." Jacobson v. United States, 503 U.S. 540, 549, 112 S. Ct. 1535, 1541 (1992). In a typical drug trafficking case, the defense of entrapment is of little use "because the ready commission of the criminal act amply demonstrates the defendant's predisposition." Id., 503 U.S. at 550, 112 S. Ct. at 1541.

Potter also had a criminal reputation, including a 1994 felony theft conviction. Deputy Ball suspected Potter was involved in drugs; the inclusion of Potter's name on Offerosky's list of potential dealers only confirmed it. Deputy Ball, as part of his duties on the Task Force, had received information from informants and people on the street that Potter appeared to be active in the drug culture and that he was a person likely to sell illicit drugs. Potter attempts to discount this information as unreliable; however, the state correctly contends that Officer Ball's role is to collect data from informants. Potter's former girlfriend, Boos, testified there were never any drugs in the home when she lived with Potter, but that she had seen Potter smoke marijuana, and that his comrades used drugs. Potter admitted that he tested positive for contraband in a urine test prior to his trial. This confluence of fact is more than adequate to find that Potter was predisposed to sell drugs.

Based on the record, the district court properly found that the state met its burden of showing that Potter was predisposed to sell drugs before being approached by an agent of the state.


[*] Retired judge of the district court, serving as judge of the Minnesota Court of Appeals by appointment pursuant to Minn. Const. art. VI, § 10.

[1] The Paul Bunyon Drug Task Force is a group of six law enforcement officers who share an office in Bemidji and work full-time on narcotics and stolen property cases. Deputy Ball is a member of the Task Force.

[2] A body transmitter is a small device that is put either in a shoulder holster or taped to a person's body. It has a microphone and antenna and transmits to a receiver and then into a tape recorder where it is recorded.