STATE OF NORTH CAROLINA
v
.
Lenoir County
No. 02 CRS 54786
JOYCE LENSIE
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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