Opinion
No. COA13–1412.
2014-10-7
STATE of North Carolina v. Melissa Lee OTT.
Attorney General Roy Cooper, by Special Deputy Attorney General Oliver G. Wheeler, IV, for the State.James R. Glover for defendant-appellant.
Vacated and remanded.
Appeal by defendant from judgment entered 5 July 2013 by Judge Julia L. Gullett in Rowan County Superior Court. Heard in the Court of Appeals 13 August 2014. Attorney General Roy Cooper, by Special Deputy Attorney General Oliver G. Wheeler, IV, for the State. James R. Glover for defendant-appellant.
HUNTER, Robert C., Judge.
Defendant Melissa Lee Ott appeals from the judgment entered after a jury convicted her of: (1) trafficking in 28 grams or more of opium by sale; (2) trafficking in 28 grams or more of opium by possession; and (3) possession of opium with the intent to sell and deliver. On appeal, defendant argues that the trial court erred by denying her request to instruct the jury on the defense of entrapment.
After careful review, because defendant offered sufficient evidence of entrapment, the trial court erred in refusing to instruct the jury on the defense of entrapment. Accordingly, we vacate the judgment and remand for trial.
However, we find the facts of the present case distinguishable. Unlike Thompson, here, there was no “ascertain[ment]” of the validity of Eudy's information. Although Detective Davis testified that Eudy made a “controlled buy” from defendant prior to the incident where she sold the pills to Detective Black, Detective Davis acknowledged that the “controlled buy” was not witnessed by law enforcement nor recorded. Instead, Eudy brought him 0.5 grams of hard cocaine that she claimed she had purchased from defendant. However, at trial, when asked about the previous “controlled buy,” Eudy pled the Fifth Amendment and refused to answer. Thus, unlike Thompson where the police actually observed the defendant sell drugs to the informant, here, police had no way of ascertaining the validity of the “controlled buy” nor the reliability of Eudy's information about defendant, especially since Eudy was unwilling to confirm this prior purchase at trial. Furthermore, construing defendant's testimony as true, Eudy, the agent of law enforcement, did not simply point defendant to a supplier but actually supplied defendant the pills to sell and told her what to say during the interactions with Detective Black. Once the transaction was complete, the money would go to Eudy with defendant being paid in pills. In other words, the entire drug transaction flowed through Eudy, an agent of law enforcement; there were no other suppliers or third parties involved as in Thompson where the defendant had to go to an outside, unrelated supplier to get the drugs.
Finally, unlike the defendant in Thompson, defendant, who admitted that she was a pill user, did receive pills in exchange for selling Detective Black the pills, pills which defendant admitted she was “desperate” for. In contrast, however, the Thompson defendant received nothing in exchange for selling the cocaine—his entire motivation was to do a favor for the confidential informant, and he “[took] no profit from the transaction.” Id. at 707, 543 S.E.2d at 166. Thus, in sum, the evidence does not simply show that defendant was given an “opportunity” to sell the drugs; there was sufficient evidence of persuasion and evidence that the entire criminal design, including the supply of the drugs and the details of how defendant should act, originated with law enforcement. Accordingly, the State's reliance on Thompson is misplaced.
In contrast, viewing the evidence in a light most favorable to defendant and “assum[ing]” defendant's testimony is true, Foster, ––– N.C.App. at ––––, 761 S.E.2d at 215, Eudy initiated a conversation with defendant and asked her to sell pills to Detective Black. Eudy introduced defendant to Detective Black, coached defendant on exactly what to do during the encounter, and supplied the drugs. Although a user of pills, defendant denied ever selling them and steadfastly claimed that she would never have sold them but for Eudy's persistence and offer to provide defendant pills. Accordingly, defendant presented sufficient evidence of the elements of entrapment, and the trial court erred in refusing to instruct on this defense at trial.
Conclusion
In sum, we hold that defendant presented sufficient evidence to warrant submission of the entrapment defense to the jury. Defendant is, therefore, entitled to a new trial.
NEW TRIAL.