Opinion
No. COA11–1174.
2012-05-1
STATE of North Carolina v. Allard Bayles BRIGMAN, Defendant.
Attorney General Roy A. Cooper, III, by Assistant Attorney General Phyllis A. Turner, for the State. Winifred H. Dillon for defendant-appellant.
Appeal by defendant from judgment entered on or about 29 June 2011 by Judge Mark E. Powell in Superior Court, Buncombe County. Heard in the Court of Appeals 23 April 2012. Attorney General Roy A. Cooper, III, by Assistant Attorney General Phyllis A. Turner, for the State. Winifred H. Dillon for defendant-appellant.
STROUD, Judge.
Allard Bayles Brigman (“defendant”) appeals from judgment entered after a jury found him guilty of trafficking in methamphetamine by transporting, trafficking in methamphetamine by selling, trafficking in methamphetamine by possession, and conspiracy to traffic in methamphetamine. We find no error.
The State presented evidence tending show that on 14 January 2011 defendant sold a quarter of an ounce of methamphetamine for $475 to Danny Holden, a sergeant with the Asheville Police Department working undercover with the Buncombe County Anticrime Task Force. He was introduced to defendant by a confidential informant. At the conclusion of the sale, Holden and defendant exchanged phone numbers in order to arrange future transactions.
On 18 January 2011, Holden received a text message from defendant indicating defendant had “fire” for the same price. Based upon their conversation on 14 January, Holden understood “fire” meant methamphetamine. Holden sent defendant a reply text message indicating he “need[ed] some heat.” They arranged to meet on 20 January at 3:00 p.m. in the Lowe's parking lot in Asheville.
On 20 January 2011, Holden arrived at the agreed upon location, and sent a text message to defendant advising that he had arrived. Defendant arrived in a car with a female passenger. Holden got into the backseat of defendant's car. Defendant handed Holden a substance in a clear plastic bag, and Holden gave defendant $450. During this transaction defendant told Holden he had made enough money for his supplier and could get Holden any amount of methamphetamine that he wanted.
On 28 January 2011, Holden called defendant and asked if he could get an ounce and a half (approximately forty-two grams) of methamphetamine. Defendant advised he could get it and quoted a price of $2400. They agreed to meet at the same location and time. Defendant arrived with the same woman, and Holden got into the back seat of defendant's car. Defendant gave Holden a clear plastic bag containing the methamphetamine, and Holden gave defendant $2400. They talked briefly and Holden got out of the car. Holden signaled with his hat to other officers that the deal was completed. Thereafter, defendant was stopped and arrested. Holden drove by the scene to make sure the correct car had been stopped.
Defendant testified in his own defense. Defendant testified that he had been addicted to methamphetamine since 2005. Defendant testified that he had sold methamphetamine to the confidential informant, Jason, on six to eight prior occasions. According to defendant, at the first meeting in the Lowe's parking lot, it was Jason who sold Holden the methamphetamine. Defendant further testified that it was Holden who asked him if he could get larger amounts of methamphetamine. Defendant responded that he did not know because he had never obtained or sold quantities greater than half an ounce. Defendant testified that he did not keep any methamphetamine on hand other than for personal use, and when someone contacted him to buy he would obtain it from his direct supplier, Tammy Gurley.
At trial, defendant requested the jury be instructed on entrapment, and the trial court denied the request. Defendant argues the trial court erred in denying his request for a jury instruction on entrapment. Defendant contends the evidence shows he lacked the predisposition to sell large amounts of methamphetamine and he was induced to do so by law enforcement agents who wanted to charge him with a trafficking level offense.
The defense of entrapment consists of two 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, 749–50 (1978) (citation omitted). “A defendant is entitled to a jury instruction on entrapment whenever the defense is supported by defendant's evidence, viewed in the light most favorable to the defendant.” State v. Jamerson, 64 N.C.App. 301, 303, 307 S.E.2d 436, 437 (1983) (citations omitted). “Before a Trial Court can submit such a defense to the jury there must be some credible evidence tending to support the defendant's contention that he was a victim of entrapment, as that term is known to the law.” State v.. Burnette, 242 N.C. 164, 173, 87 S.E.2d 191, 197 (1955) (citations omitted). However, it is well settled that a defendant who is predisposed to commit the crime regardless of government inducement or influence is not entitled to an instruction on entrapment. State v. Hageman, 307 N.C. 1, 29, 296 S.E.2d 433, 449 (1982). “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 an opportunity to commit the crime.” Id. at 31, 296 S.E.2d at 450 (citations omitted).
Viewed in the light most favorable to the defendant, the evidence presented here amounts to no more than Holden providing defendant the opportunity to sell larger quantities of methamphetamine. The evidence shows defendant readily complied and willingly cooperated with the request to deliver larger quantities of methamphetamine. Accordingly, we hold the trial court did not err in denying defendant's request for an instruction on entrapment.
NO ERROR. Judges CALABRIA and BEASLEY concur.
Report per Rule 30(e).