Opinion
No. COA11–1532.
2012-06-5
STATE of North Carolina v. David Otis MERCER.
Attorney General Roy Cooper, by Assistant Attorney General Kimberly D. Potter, for the State of North Carolina. Sue Genrich Berry for David Otis Mercer.
Appeal by Defendant from judgment entered 29 June 2011 by Judge William R. Pittman in Brunswick County Superior Court. Heard in the Court of Appeals 8 May 2012. Attorney General Roy Cooper, by Assistant Attorney General Kimberly D. Potter, for the State of North Carolina. Sue Genrich Berry for David Otis Mercer.
STEPHENS, Judge.
Factual Background and Procedural History
Defendant David Otis Mercer appeals from judgment entered upon his 29 June 2011 convictions on charges of being a felon in possession of a firearm and of having attained the status of habitual felon. The evidence at trial tended to show the following: On 26 August 2010, the Ocean Isle Police Department (“OIPD”) contacted Agent Chad Nesbitt of the Bureau of Tobacco, Firearms and Explosives about assisting in a firearms investigation. At the OIPD's request, Nesbitt met with Lewis Latanzio, the husband of Defendant's stepdaughter. Latanzio had reported to the OIPD that Defendant had asked Latanzio to keep certain firearms while Defendant was in prison. Latanzio explained that since Defendant had been released from prison, he had contacted Latanzio about two shotguns Latanzio was holding for Defendant. Latanzio was concerned because he knew that as a convicted felon, Defendant was prohibited from possessing firearms.
Latanzio's first name is spelled both “Lewis” and “Louis” in various parts of the trial transcript.
Nesbitt had Latanzio telephone Defendant twice on 26 August 2010 in an attempt to record Defendant stating his intentions for the shotguns, but Latanzio only reached Defendant's voicemail. Later that day, Nesbitt equipped Latanzio with a police-monitored recording device and had him meet Defendant to discuss the guns. During the recorded conversation, Defendant and Latanzio discussed the location of the guns and their worth, and Latanzio told Defendant he knew someone who would pay up to $1400 for the guns. Following the conversation, Latanzio abandoned the guns to Nesbitt.
In mid-October 2010, Latanzio again contacted the OIPD, reporting that Defendant had continued to ask about the location of the guns and whether they had been sold. The OIPD relayed this information to Nesbitt, who arranged for Wilmington Police Department Detective Stewart Newton to telephone Defendant and pose as a buyer in possession of the two guns. In the recorded 18 October 2010 call, Newton explained that he had decided the price was too high and he wished to return the guns to their owner. Defendant told Newton to deal with Latanzio regarding the guns, but Newton told Defendant he wanted to be sure the guns were returned to Defendant as the actual owner. Defendant told Newton to call him on 20 October when Newton said he would be in Ocean Isle. On 20 October, Newton called Defendant, who eventually agreed to meet Newton in a grocery store parking lot. When Defendant arrived at the parking lot, he parked near Newton's truck and the two men spoke briefly. Newton then placed the guns in Defendant's truck through the open passenger side window. Defendant was stopped and arrested when he drove out of the parking lot with the guns in his truck.
After being read his Miranda rights, Defendant admitted to Nesbitt that he owned the two guns he had just received from Newton and was aware it was a crime for him to possess firearms. At trial, Defendant moved to dismiss the possession of a firearm charge at the close of the State's evidence and again at the close of all evidence, arguing the evidence was insufficient to send the case to the jury. The trial court denied both motions.
Discussion
Defendant makes a single argument on appeal: that the trial court erred in denying his motions to dismiss for insufficiency of the evidence where Defendant established the defense of entrapment as a matter of law. We disagree.
When a defendant moves for dismissal, the trial court is to determine whether there is substantial evidence (a) of each essential element of the offense charged, or of a lesser offense included therein, and (b) of [the] defendant's being the perpetrator of the offense. If so, the motion to dismiss is properly denied ... Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion In ruling on a motion to dismiss the trial court is to consider the evidence in the light most favorable to the State.
State v. Earnhardt, 307 N.C. 62, 65–67, 296 S.E.2d 649, 651–52 (1982) (citations and quotation marks omitted). Our General Statutes make it “unlawful for any person who has been convicted of a felony to purchase, own, possess, or have in his custody, care, or control any firearm[.]” N.C. Gen.Stat. § 14–415.1(a) (2011).
At trial, Defendant did not deny being a convicted felon or possessing a firearm, but rather contended he had been entrapped. Defendant's theory of the case was that he had given the guns to Latanzio, knew he could not legally possess them, and never intended to possess them.
Entrapment is a complete defense to the crime charged. State v.. Branham, 153 N.C.App. 91, 99–100, 569 S.E.2d 24, 29 (2002) (citation omitted).
To establish the defense of entrapment, it must be shown 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. The defense is not available to a defendant who was predisposed to commit the crime charged absent the inducement of law enforcement officials. [The d] efendant bears the burden of proving the affirmative defense of entrapment. Ordinarily, the issue of whether a defendant has been entrapped is a question of fact which must be resolved by the jury. It is only when the undisputed evidence discloses that an accused 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.
Id. at 99, 569 S.E.2d at 29 (citations and quotation marks omitted).
Defendant cites Sorrells v. United States, 287 U.S. 435, 77 L.Ed. 413 (1932), and Sherman v. United States, 356 U.S. 369, 2 L.Ed.2d 848 (1958), for the proposition that “the thrust of the entrapment defense [is a] focus on the intent or predisposition of the defendant to commit the crime.” We agree that a defendant's intent or predisposition to commit the crime charged is the ultimate question in entrapment cases pursuant to Sorrells and Sherman, as well as our own State's case law. See e.g., Branham, supra. However, each of these cases also stands for the proposition that, where evidence of entrapment is disputed, the question is for the jury.
We note that in Sorrells, the United States Supreme Court “granted a writ of certiorari limited to the question whether the evidence was sufficient to go to the jury upon the issue of entrapment.” 287 U.S. at 439, 77 L.Ed. at 415. After considering the conflicting evidence of entrapment and of the defendant's predisposition to commit the crime charged, the Court held that entrapment had not been established as a matter of law and the question should have gone to the jury. Id. at 452, 77 L.Ed. at 422.
In Sherman, the Supreme Court did hold “from the evidence that entrapment was established as a matter of law.” 356 U.S. at 373, 2 L.Ed.2d at 851. In so doing, however, the Court emphasized that it was “not choosing between conflicting witnesses, nor judging credibility” [but rather] reach[ed the] conclusion from the undisputed testimony of the prosecution's witnesses.” Id. (emphasis added).
Here, in contrast to Sorrells, although the trial court denied Defendant's motion to dismiss for insufficiency of the evidence, it did submit the defense of entrapment to the jury. Thus, Defendant can only prevail if there was “undisputed evidence [that Defendant] was induced to engage in criminal conduct that he was not predisposed to commit[.]” Branham, 153 N.C.App. at 99, 569 S.E.2d at 29 (emphasis added) (citation and quotation marks omitted); see also State v. Stanley, 288 N.C. 19, 32, 215 S.E.2d 589, 597 (1975) (“The court can find entrapment as a matter of law only where the undisputed testimony and required inferences compel a finding that the defendant was lured by the officers into an action he was not predisposed to take.”) (emphasis added) (citation and quotation marks omitted).
Our review of the evidence at trial indicates that, while there was certainly evidence that would have supported a jury finding that Defendant was entrapped, the evidence was not undisputed. Newton testified that when he contacted Defendant about returning the guns, Defendant at first referred Newton to Latanzio, but eventually agreed to meet with Newton and reclaim his guns. Defendant agreed to the meeting, drove to the meeting place, accepted the guns from Newton, and then drove away in possession of them. In addition, Defendant himself testified that he agreed to go and pick up the guns, despite his discomfort with doing so:
Q. Did [Newton] indicate that he was down at Lowes' and that he wanted to meet up with you, correct?
A. Yes.
Q. After you hung up the phone, what did you do?
A. I got ready and I left. Q. Where did you drive to?
A. I live right off of [Highway] 179. I rode down 179, headed toward Lowes' Foods and my stepdaughter lives between my house and Lowes' Food's [sic], which is [Latanzio]'s wife, of course. I didn't feel too good about the thing anyhow. So I stopped in and talked to [his stepdaughter] about, and asked her where was [Latanzio] at, to get him to ride with me to go get those guns. She said he wasn't there. I said, “Well, the man has called me about the guns and I am going to go pick them up.” I said, “I don't feel good about it but I am going to go pick them up and get them back here.”
Defendant also testified that he had previously been convicted of possession of a firearm by a felon in 2008 and knew that it was a crime for him to possess the two guns he received from Newton. In the light most favorable to the State, this evidence “may have been sufficient to raise the issues of inducement, and lack of predisposition to commit the offenses, but fell short of compelling a conclusion of entrapment as a matter of law. ... the issue of entrapment was properly submitted to the jury.” Branham, 153 N.C.App. at 102, 569 S.E.2d at 30–31 (citation and quotation marks omitted). Accordingly, the trial court did not err in denying Defendant's motions to dismiss.
NO ERROR. Judges McGEE and HUNTER, JR., ROBERT N., concur.
Report per Rule 30(e).