Opinion
No. 04-1611.
Filed 15 November 2005.
Mecklenburg County Nos. 03 CRS 240347-48.
Appeal by defendant from judgment entered 10 March 2004 by Judge Albert Diaz in Mecklenburg County Superior Court. Heard in the Court of Appeals 31 October 2005.
Attorney General Roy Cooper, by Special Deputy Attorney General John R. Corne, for the State. Moshera H. Mohamed for defendant-appellant.
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 commented that 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 after defendant 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.
* * *
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 criminal design 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).