STATE OF NORTH CAROLINA
v. Mecklenburg County
Nos. 03 CRS 240347-48
ADAM BERNARD MONTGOMERY
Attorney General Roy Cooper, by Special Deputy Attorney
General John R. Corne, for the State.
Moshera H. Mohamed for defendant-appellant.
CALABRIA, Judge.
Defendant was found guilty by a jury of two counts of
possession with intent to sell or deliver cocaine. On 10 March
2004, the trial court consolidated the convictions for judgment and
imposed a sentence of ten to twelve months in the North Carolina
Department of Correction. Defendant appeals.
At trial, the State presented the following evidence.
Detectives Foushee and Abernathy participated in an undercover drug
interdiction operation at the Villager Lodge on 21 August 2003.
Defendant approached Detective Foushee that evening and asked if he
had seen a man named Terry who owed money to defendant. After
Detective Foushee said he had not seen Terry, defendant commentedthat Detective Foushee was “new around here.” Detective Foushee
acknowledged that he was new, and he said “I'm probably looking for
the same thing that we all are, the same thing that you are.”
Defendant then asked if Detective Foushee was looking for “hard” (a
slang moniker for crack cocaine), and Detective Foushee replied
affirmatively. Defendant indicated he was looking for the same
thing, but his person was not there. Defendant asked to use
Detective Foushee's cell phone so that he could “call up my guy and
bring some over.” Detective Foushee heard defendant ask “B” during
the phone call if he could bring some over, and defendant then
asked Detective Foushee what he wanted. Detective Foushee said
“two,” and defendant requested “two dimes” from the person with
whom he was speaking on the phone.
Defendant asked Detective Foushee for the money, and he walked
to the front of the hotel after Detective Foushee gave him twenty
dollars. Defendant returned approximately five minutes later and
gave Detective Foushee two crack cocaine rocks (0.12 grams).
Before leaving, defendant told Detective Foushee if he needed any
more that he could get up with him in room 429. A short time
later, Detective Foushee went to room 429 and asked defendant for
a “couple more.” Defendant again used Detective Foushee's cell
phone to place a call, took Detective Foushee's money, and left.
He subsequently delivered two crack cocaine rocks (0.16 grams) to
Detective Foushee's room. Uniformed officers arrested defendant
shortly afterwards in his room. Defendant testified that Detective Foushee initiated their
conversation that evening by asking “where's he at?” Defendant
replied that he did not know what Detective Foushee was talking
about and that he was looking for Terry. Detective Foushee said
that he had not seen Terry and that he was probably looking for the
same thing that defendant was. After Detective Foushee continued
asking “where's it at,” defendant figured out what he was talking
about. When defendant said “weed, right,” Detective Abernathy said
he was looking for weed, but Detective Foushee was looking for “the
other thing.” Defendant said “what's that, hard,” and Detective
Foushee said yes. The conversation moved to other topics for a
time, then Detective Foushee related that a man named Tony had
taken their money and apparently was not going to return.
Defendant said he “had kind of mixed feelings about it” when the
undercover officers persisted in asking for hard, but he “felt kind
of an obligation to help.” According to defendant, the undercover
officers asked him “more than three” times about where they could
get hard.
Defendant told the undercover officers that he knew someone.
He was going to go to his room to call the person, but Detective
Foushee instead offered the use of his cell phone. After defendant
made the arrangements, Detective Foushee declined to accompany him
to get the crack cocaine and gave him twenty dollars. Defendant
left after taking the money, then returned with the crack cocaine.
He did not ask Detective Foushee for any kind of payment for making
the purchase and delivery. About twenty or thirty minutes afterdefendant had returned to his room, Detective Foushee came to his
door asking defendant to get more crack cocaine for him. Defendant
again used Detective Foushee's cell phone to “put the order in.”
Defendant left with Detective Foushee's money and later delivered
the crack cocaine to Detective Foushee's room. Defendant did not
receive any payment for making this second delivery. He said
Detective Foushee did not beg or raise his voice, but was
persistent in asking. Defendant conceded that he could have said
no to the requests.
During the charge conference following the close of all the
evidence, the trial court asked if the State objected to an
instruction on entrapment. The State argued defendant's evidence
was insufficient to support submission of the instruction. Defense
counsel responded that officers conducted the interdiction
operation with the intent to get drug sales made and used false
information to induce people to commit a crime. The trial court
declined to give the entrapment instruction and noted defense
counsel's exception. From the trial court's judgment, defendant
appeals.
Defendant contends the trial court erred by denying his
request for a jury instruction on entrapment. He argues there was
credible evidence that the criminal intent originated with the
undercover officers and that they persuaded and tricked him into
thinking that another resident of the Villager Lodge had taken
advantage of them. Defendant's argument is not persuasive. Whether a defendant is entitled to have the jury instructed as
to the defense of entrapment is determined by the evidence. State
v. Burnette, 242 N.C. 164, 173, 87 S.E.2d 191, 197 (1955). Before
a trial court can give the instruction, “there must be some
credible evidence tending to support the defendant's contention
that he was a victim of entrapment . . . .” Id. The defense of
entrapment has two essential elements:
(1) acts of persuasion, trickery, or fraud
carried out by law enforcement officers or
their agents to induce a defendant to commit a
crime, (2) when the criminal design originated
in the minds of the government officials,
rather than with the innocent defendant, such
that the crime is the product of the creative
activity of the law enforcement authorities.
State v. Walker, 295 N.C. 510, 513, 246 S.E.2d 748, 750 (1978).
Conversely, regarding the defense of entrapment, our Supreme
Court has made clear the following:
It is well settled that the [entrapment]
defense is not available to a defendant who
has a predisposition to commit the crime
independent of government inducement and
influence. The fact that governmental
officials merely afford opportunities or
facilities for the commission of the offense
is, standing alone, not enough to give rise to
the defense of entrapment.
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Predisposition may be shown by a defendant's
ready compliance, acquiescence in, or
willingness to cooperate in the criminal plan
where the police merely afford the defendant
the opportunity to commit the crime.
State v. Hageman, 307 N.C. 1, 29-31, 296 S.E.2d 433, 449-51 (1982)
(citations omitted). Consequently, “[i]n the absence of evidence tending to show
both inducement by government agents and that the intention to
commit the crime originated not in the mind of the defendant, but
with the law enforcement officers, the question of entrapment has
not been sufficiently raised to permit its submission to the jury.”
Walker, 295 N.C. at 513, 246 S.E.2d at 750 (emphasis added).
Law enforcement maintains an ability to engage in lawful
investigative procedures. For instance, an undercover officer “may
rightfully furnish to the plyers of this [drug] trade [an]
opportunity to commit the crime in order that they may be
apprehended.” State v. Stanley, 288 N.C. 19, 33, 215 S.E.2d 589,
598 (1975) (emphasis added). Further, “[m]erely affording
opportunities or facilities for the commission of a crime . . .
does not amount to entrapment.” Walker, 295 N.C. at 515, 246
S.E.2d at 751. In fact, “selling drugs as a favor and taking no
profit from the transaction does not entitle the defendant to an
instruction on entrapment.” State v. Thompson, 141 N.C. App. 698,
707, 543 S.E.2d 160, 166, disc. review. denied, 353 N.C. 396, 548
S.E.2d 157 (2001).
As established above, a criminal defendant must illustrate
both inducement and criminal design by law enforcement to
constitute the defense of entrapment. See, e.g., State v. Grier,
51 N.C. App. 209, 212-13, 275 S.E.2d 560, 562-63 (1981) (holding
that the following supported the granting of an entrapment defense:
a criminal defendant testified that she sold the drugs only after
the undercover officer had already provided her with gifts of beer,food, cigarettes, and money to fix her car and leaky basement, and
that the officer first raised the subject of a drug purchase, drove
her to each of the drug purchase locations, and provided her with
money to buy the drugs); State v. Blackwell, 67 N.C. App. 432, 438,
313 S.E.2d 797, 801 (1984) (finding grounds for entrapment where
the evidence tended to illustrate that an undercover law
enforcement officer induced the defendant to sell him narcotics by
gifts of money and promises of a job).
We find no similar evidence of inducement by law enforcement
officers in defendant's testimony in the instant case.
“[D]efendant must present evidence that [the officers] did
something more than simply meet defendant and give him money to buy
the cocaine.” State v. Martin, 77 N.C. App. 61, 67, 334 S.E.2d
459, 462 (1985), cert. denied, 317 N.C. 711, 347 S.E.2d 47 (1986).
Neither undercover officer provided gifts nor made promises before
asking defendant to purchase cocaine for them. Although defendant
testified that he had “mixed feelings about it,” his own testimony
showed that the undercover officers only asked him “more than three
times” before he complied with their requests. The fact that
Detective Foushee “gave defendant the money and asked him to obtain
the cocaine is not evidence of inducement, just an opportunity to
commit the offense.” Id. at 67, 334 S.E.2d at 463. Defendant's
contention that he was not compensated by the undercover officers
for his efforts is irrelevant. See Thompson, supra. Defendant
failed to introduce sufficient evidence of persuasion, trickery or
fraud by either undercover officer to suggest that the criminaldesign originated with the law enforcement agents and not with
himself.
Viewed in the light most favorable to the defendant, this
evidence amounts to no more than the undercover officers “providing
opportunity.” While the undercover officers did conceal their
identities as law enforcement agents from defendant and were less
than candid about their motivation for seeking to purchase “hard,”
defendant has failed in his burden to show that his actions were
the result of “persuasion, trickery, or fraud” on the part of the
undercover officers. The trial court therefore did not err in
refusing to submit an instruction on entrapment to the jury, and
defendant's assignment of error to the contrary is overruled.
No error.
Judges WYNN and JACKSON concur.
Report per Rule 30(e).
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