A decision without a published opinion is authority only in the case in which such decision is rendered and should not be cited in any other case in any court for any other purpose, nor should any court consider any such decision for any purpose except in the case in which such decision is rendered. See Rule of Appellate Procedure 30 (e)(3).

NO. COA02-171


Filed: 3 September 2002


         v.                        Harnett County
                                Nos. 00 CRS 50639-40;
                                    00 CRS 50642-43

    Appeal by defendant from judgments entered 5 July 2001 by Judge Wiley F. Bowen in Superior Court, Harnett County. Heard in the Court of Appeals 26 August 2002.

    Attorney General Roy Cooper, by Assistant Attorney General Jason T. Campbell, for the State.

    Michael J. Reece for defendant-appellant.

    WYNN, Judge.

    Defendant was convicted as charged of possession with intent to sell and deliver marijuana; delivery of marijuana; sale of marijuana; keeping and maintaining a dwelling and building for the keeping and selling a controlled substance, marijuana; trafficking in cocaine by possession, sale and delivery; and keeping and maintaining a dwelling and building for the keeping and selling of a controlled substance, cocaine. He was sentenced to consecutive prison terms of a minimum of 35 months and a maximum of 42 months for the trafficking offenses. The remaining convictions were consolidated, and he was sentenced to a prison term of a minimum of eight months and a maximum of ten months for those offenses.
    The State presented evidence tending to show that on 8 March2000, Christopher Daniels, a paid informant, gave defendant $1,200 in cash and in exchange defendant handed Daniels 410 grams of marijuana. On 16 March 2000, Daniels gave defendant $1,600 in cash and in exchange defendant handed Daniels 34 grams of cocaine. Both incidents occurred at defendant's residence. Both times Daniels wore an electronic listening and recording device.
    Defendant testified that he delivered marijuana and cocaine to Daniels on the dates in question because Daniels kept badgering him to obtain these controlled substances for him. Prior to 8 March 2000, he had not sold marijuana or cocaine to Daniels or anyone. He also was not a consumer of marijuana or cocaine.
    Defendant's sole contention on appeal is that the trial court erred in admitting testimony by Daniels that he had purchased marijuana from defendant between thirty to fifty times prior to 8 March 2000, beginning in 1996. He argues that the evidence should have been excluded because of the absence of a temporal link between the prior sales and the offenses charged in the case at bar.
    Evidence is relevant if it has a tendency to make the existence of any fact that is of consequence to the determination of the action more or less probable than it would be without the evidence. N.C. Gen. Stat. § 8C-1, Rule 401 (2001). Evidence of other crimes, wrongs or acts is relevant and admissible under N.C. Gen. Stat. § 8C-1, Rule 404(b) if it is offered for certain purposes, such as to show intent, plan, knowledge or absence of entrapment. N.C. Gen. Stat. § 8C-1, Rule 404(b) (2001). Thedefense of entrapment consists of: (1) acts of persuasion, trickery or fraud carried out by law enforcement officers to induce a defendant to commit a crime; and (2) with the criminal design originating in the minds of government officials rather than the innocent defendant. State v. Walker, 295 N.C. 510, 513, 246 S.E.2d 748, 750 (1978). The burden of proving entrapment is on the defendant. State v. Hageman, 307 N.C. 1, 28, 296 S.E.2d 433, 448 (1982). When the defendant asserts the defense of entrapment, the State may show that the defendant was not entrapped by presenting evidence that the defendant was predisposed to commit the crime with which he is charged. State v. Goldman, 97 N.C. App. 589, 593, 389 S.E.2d 281, 283 (1990).
    The trial court's order ruling upon defendant's motion to exclude the evidence of prior sales shows that during opening statements, defendant's counsel contended that Daniels, acting as an agent of the State of North Carolina, entrapped defendant. Since defendant raised the issue of entrapment, defendant's prior history of drug sales became relevant to this issue. Evidence that defendant made between thirty to fifty sales of marijuana to the informant since 1996 clearly has a tendency to show that defendant had some predisposition to commit the crimes charged. Any remoteness in time between the last sale by defendant to Daniels and the present incidents affected the weight of the evidence to be given by the jury and not its admissibility. See State v. Stager, 329 N.C. 278, 307, 406 S.E.2d 876, 893 (1991).
    By not bringing forward his second assignment of error,defendant is deemed to have abandoned it. See N.C.R. App. P. 28(a) (2002).
    No error.
    Judges McGEE and CAMPBELL concur.
    Report per Rule 30(e).

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