An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Proced ure.

NO. COA04-1094


Filed: 2 August 2005


v .                         Lenoir County
                            No. 02 CRS 54786

    Appeal by defendant from judgment entered 13 April 2004 by Judge Russell J. Lanier, Jr., in Lenoir County Superior Court. Heard in the Court of Appeals 11 May 2005.

    Attorney General Roy Cooper, by Special Deputy Attorney General Lars Nance, for the State.

    John T. Hall, for defendant-appellant.

    CALABRIA, Judge.

    Joyce Lensie (“defendant”) seeks review of a judgment entered on a jury verdict finding her guilty of trafficking in opium by sale. We find no error.
    On 24 September 2004, Detective Paul McLawhorn (“Det. McLawhorn”) of the Farmville Police Department, working undercover, was taken by a confidential informant to meet a friend of defendant, Tyrell Jones (“Jones”). The three went to defendant's residence in Lenoir County to purchase Oxycontin, which is a prescription painkiller derived from opium. While Det. McLawhorn waited outside, Jones entered defendant's residence, obtained ten twenty-milligram Oxycontin tablets from defendant and returned to Det. McLawhorn who paid $160.00 for the Oxycontin. Shortly afterJones completed the transaction, defendant exited her home and spoke with Det. McLawhorn. He told defendant he “could move” a larger amount of Oxycontin. Defendant responded that she had an unfilled prescription and could get more Oxycontin.
    Detective Edward Eubanks, Jr., (“Det. Eubanks”) of the Lenoir County Sheriff's Department was informed of the undercover drug transaction. At Det. Eubanks' request, Detective Billy Luter (“Det. Luter”) of the Greene County Sheriff's Department and Det. McLawhorn arranged through an informant to meet defendant for another drug transaction on 3 October 2002 at the Nature Center in Kinston. Neither Det. McLawhorn nor Det. Luter had any contact with defendant from 24 September to 3 October. On the morning of 3 October, Det. Eubanks provided Det. McLawhorn with several hundred dollars in traceable funds. Det. McLawhorn and the informant met defendant and her driver, Andreas Jones, at the Nature Center. Defendant told Det. McLawhorn that she only had enough money to purchase sixty tablets, half of her Oxycontin prescription. Det. McLawhorn asked defendant the price of the full prescription and offered to pay her $300.00 so she could purchase the full prescription plus $600.00 for 100 Oxycontin tablets. Defendant agreed and, with Andreas Jones driving, left to purchase the Oxycontin at her pharmacy.
    Det. Luter, who was conducting surveillance for the undercover operation, followed defendant and Andreas Jones to a pharmacy in Kinston. Defendant entered the pharmacy and shortly after exited with a small bag. Det. Luter followed defendant and Andreas Jonesback to the Nature Center until they turned into the Nature Center. Defendant exited her car and gave Det. McLawhorn a bottle containing one hundred twenty-milligram Oxycontin tablets weighing approximately twelve grams. Det. McLawhorn gave defendant $600.00 and told her he would contact her again to which she responded “okay.”
    After exiting the Nature Center, defendant and Andreas Jones were stopped by Det. Eubanks, Det. Luter, and a K-9 patrol unit. After directing the two to exit the car, Det. Eubanks identified himself to defendant. Defendant stated that what he was looking for was in her pocket. Det. Eubanks retrieved from her pocket $600.00 of the traceable funds given to Det. Eubanks. He also located a bottle of twenty Oxycontin tablets in defendant's purse and a pharmacy receipt dated 3 October for 120 Oxycontin tablets with a purchase price of $311.59. Defendant had no record of prior arrests and, in her written statement after arrest, stated she had been involved in one prior drug transaction but was not a drug dealer.
    Defendant testified she did not know Jones was going to sell the ten Oxycontin tablets on 24 September, never asked Jones to pay her for the tablets, and never discussed the possibility of another transaction with Det. McLawhorn. She stated the informant returned in the following days and suggested several times that she sell more Oxycontin. She declined initially but eventually agreed to sell twenty tablets. Later, the informant requested that she find out the price for filling her Oxycontin prescription and suggestedshe sell half of it. She learned sixty tablets cost $150.00 and her full prescription of 120 tablets cost $300.00. On 3 October, she met the informant and Det. McLawhorn at the Nature Center with the intention of selling sixty tablets. However, Det. McLawhorn offered to give her $300.00 to purchase the full prescription plus $600.00 for 100 tablets, and she agreed because “the money sounded good.” Defendant stated that after the transaction, she told Det. McLawhorn she would not sell any more Oxycontin. Defendant further testified she did not want to sell the Oxycontin but the informant pressured her, and she needed the money for rent and to care for her child.
    The trial court granted defendant's request for an instruction on the defense of entrapment and properly instructed the jury on entrapment during the jury charge. On 13 April 2004, the jury found defendant guilty of trafficking in opium by sale, and the trial court sentenced her to a minimum of seventy months and a maximum of eighty-four months in the custody of the North Carolina Department of Correction and fined defendant $50,000.00. Defendant appeals.
    Defendant asserts the trial court erred by denying her motion to dismiss the charge of trafficking in opium by sale because the evidence established the defense of entrapment as a matter of law. “Entrapment is the inducement of a person to commit a criminal offense not contemplated by that person, for the mere purpose of instituting a criminal action against him.” State v. Davis, 126 N.C. App. 415, 417, 485 S.E.2d 329, 331 (1997). Entrapmentconstitutes “a complete defense to the crime charged.” State v. Branham, 153 N.C. App. 91, 99-100, 569 S.E.2d 24, 29 (2002).
    “Ordinarily, the issue of whether a defendant has been entrapped is a question of fact which must be resolved by the jury.” State v. Hageman, 307 N.C. 1, 30, 296 S.E.2d 433, 450 (1982). To establish entrapment, the defendant bears the burden of showing to the satisfaction of the jury that “(1) law enforcement officers or their agents engaged in acts of persuasion, trickery or fraud to induce the defendant to commit a crime, and (2) the criminal design originated in the minds of those officials, rather than with the defendant.” Davis, 126 N.C. App. at 418, 485 S.E.2d at 331.
    “It is only when the undisputed evidence discloses that [the defendant] was induced to engage in criminal conduct that he was not predisposed to commit that we can hold as a matter of law that he was entrapped.” Hageman, 307 N.C. at 30, 296 S.E.2d at 450. A defendant's predisposition to commit the crime charged “may be shown by [the] defendant's ready compliance, acquiescence in, or willingness to cooperate in the criminal plan where the police merely afford the defendant an opportunity to commit the crime.” Id., 307 N.C. at 31, 296 S.E.2d at 450. Therefore, evidence that law enforcement officers merely afforded the defendant the opportunity to commit the offense is, standing alone, insufficient to establish a defense of entrapment. Id., 307 N.C. at 30, 296 S.E.2d at 449. Accordingly, we must determine whether undisputed evidence discloses that defendant was induced and not predisposedto commit the crime of felony trafficking in opium, defined as “sell[ing] . . . four grams or more of opium or opiate, or any salt, compound, derivative, or preparation of opium or opiate (except apomorphine, nalbuphine, analoxone and naltrexone and their respective salts) . . . or any mixture containing such substance[.]” N.C. Gen. Stat. § 90-95(h)(4) (2003).
    Defendant first argues entrapment as a matter of law was established by evidence of the informant's (1) initial suggestions that she sell her Oxycontin, (2) request that she learn the price of her prescription, followed by the suggestion that she sell half of her prescription, and (3) arrangement to meet with Det. McLawhorn. Contrary to defendant's argument, however, the evidence indicated that, although she may have initially declined, defendant willingly complied with the informant's suggestions to sell her Oxycontin. Furthermore, defendant's testimony that the informant “dropped” the subject each time defendant declined to sell her Oxycontin created a question of fact regarding whether the informant's actions rose to the level of persuasion, trickery, or fraud intended to induce defendant into committing the crime or were merely acts affording defendant the opportunity to commit the crime. Therefore, the evidence concerning the informant's actions raised a question of fact for the jury to determine whether defendant was predisposed or was induced to commit the crime and did not establish the defense of entrapment as a matter of law.
    Defendant next argues that Det. McLawhorn's advance of $300.00 to purchase the entire 120 tablet prescription and his offer to payher $600.00 for 100 tablets persuaded her to sell more than the sixty tablets she originally intended to sell; therefore, Det. McLawhorn's acts constituted entrapment into the heightened offense of trafficking in opium. As noted above, the felony of trafficking in opium is committed when a person “sells . . . four grams or more of opium or opiate. . . or any mixture containing such substance . . . .” N.C. Gen. Stat. § 90-95(h)(4)(a). Where the amount sold is between four and fourteen grams, the crime is punishable by a minimum of seventy and a maximum of eighty-four months in the custody of the North Carolina Department of Correction and a fine of not less than $50,000.00. Id.
    Here, the 120 Oxycontin tablets weighed approximately 16.3 grams, and the 100 Oxycontin tablets weighed approximately twelve grams. Based on these weights, sixty tablets alone would have weighed between 7.2 and 8.15 grams, an amount greater than required for the offense of trafficking in opium. Therefore, assuming arguendo a form of entrapment occurs when a law enforcement officer persuades a person to commit a heightened form of the crime she originally intended, the evidence here does not support such a defense; whether defendant sold sixty tablets or 100 tablets, she was guilty of felony trafficking an amount of opium between four and fourteen grams, punishable under N.C. Gen. Stat. § 90- 95(h)(4)(a). Moreover, defendant testified that, when Det. McLawhorn offered to advance $300.00 and pay $600.00 for 100 tablets, “the money sounded good.” This evidence, along with her stated intention to sell sixty tablets, raises a question of factregarding whether defendant was predisposed to commit the crime and whether Det. McLawhorn's offer merely afforded defendant the opportunity to sell a greater amount of Oxycontin.
    Accordingly, the trial court did not err in denying defendant's motion to dismiss on the basis that the evidence established the defense of entrapment as a matter of law. Rather, the trial court properly submitted the issue of entrapment to the jury for a factual determination on the question of entrapment. For the foregoing reasons, we hold defendant received a fair trial free from error.
    No error.
    Judges MCGEE and ELMORE concur.
    Report per Rule 30(e).

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