In order to be entitled to the defense of entrapment, the defendant must show evidence of: (1) acts of persuasion, trickery, or fraud carried out by law enforcement officers or their agents to induce a defendant to commit a crime, and (2) the criminal design originated in the minds of the government officials, rather than the innocent defendant, such that the crime is the product of the creative activity of the law enforcement authorities. State v. Ott, 763 S.E.2d 530, 533 (N.C.App. 2014).
In State v. Ott, the defendant was charged with trafficking in 28 grams or more of opium by selling to an undercover detective, trafficking in 28 grams or more of a preparation opium by possession and possession of a preparation opium with intent to sell and deliver. Ott, 763 S.E.2d at 530. The defendant’s friend (Eudy) contacted the Rowan County Sheriff’s Department and offered to serve as a confidential informant in exchange of receiving a more lenient sentence for her pending drug charge. Id. at 531.Eudy told the Detective that the defendant had narcotics for sale and agreed to introduce an undercover officer to the defendant to make a purchase. Id.
Prior to setting up the sale, Eudy provided the defendant with the pills to sell to the detective. Id. at 532. Eudy coached the defendant on what to say when the undercover detective arrived, and even gave the defendant pills for her personal use for completing the sale for her. Id. Eudy told the defendant that she needed her to do the deal for her because she did not want her husband to find out that she was selling drugs. Id. When the undercover detective arrived to the defendant’s home on the day that Eudy set the deal up, the defendant told the undercover detective that she usually only dealt drugs to six people and asked the undercover detective to lift his shirt to prove that he was not a police officer. Id. at 531.
At trial, the defendant testified that she was a drug user, not a seller, and that she only sold the pills as a favor to Eudy. Id. at 532. The defendant also testified that she “absolutely” would not have sold the pills but for Eudy’s involvement. Id. She further testified that she only was “talking the talk” when she interacted with the detective. Id. The defendant admitted that on two prior occasions that she sold cocaine to Eudy and that she had previously been convicted of possession of cocaine and drug paraphernalia. Id.
At the beginning of the charge conference, the judge listed the jury instructions it intended to give and the State objected to the instruction of the defense of entrapment. Id. Ultimately, the trial judge ruled that the evidence established defendant’s predisposition to commit the crime and therefore declined to give the defense instruction. Id. The defendant was found guilty of all three charges. Id.
On appeal, the defendant argued that the trial court erred by failing to give the instruction on the defense of entrapment. Id. The defendant argued that taken in the light most favorable to the defendant, the evidence demonstrated that the plan to sell the pills originated in the mind of Eudy and that the defendant was only convinced to sell the pills through trickery and persuasion. Id. The Court of Appeals agreed that the defendant submitted sufficient evidence to warrant submission of the entrapment defense and ordered a new trial for the defendant. Id. at 536.
The court noted that although Eudy disputed the defendant’s evidence at trial, it must be assumed that the defendant’s testimony is true for the purpose of an entrapment issue. Id. at 533. The court also decided that viewed in the light most favorable to the defendant, the defendant’s testimony would permit the jury to find that the idea for the crime of selling pills originated with Eudy, not the defendant, and also that there was no predisposition to sell the pills despite the fact that the defendant admitted to selling drugs in the past and that she was a drug user. Id. at 534.
In Jamerson, the defendant was a varsity football player. State v. Jamerson, 307 S.E.2d 436 (N.C. App. 1983). The defendant was approached by Greer (an acquaintance who was a confidential informant) and Sheets (an undercover detective posing as Greer’s cousin) to sell them some drugs. Id. at 436. The defendant told the two agents that he did not have any drugs. Id. Greer told the defendant that Sheets was an addict and that he desperately needed the drugs. Id. at 437.The defendant then told the two to return later that night and that he would take them to someone who was selling the drugs that they were looking for. Id. However, the defendant did not take the matter seriously and instead took a nap. Id. When the two agents returned later that night, the defendant again told the agents that he did not have any drugs to sell them. Id. At that point, Greer told the defendant that he knew of a student on campus who would be willing to sell him the drugs. Id. Greer offered the defendant fifteen dollars to make the purchase. Id. Greer then drove both Sheets and the defendant to campus so that the defendant could make the purchase from the person who Greer identified, while Greer and Sheets remained in the car. Id.
At trial the defendant did not deny that he played a role in obtaining the drugs, but his defense was that he was entrapped by Greer and Sheets. Id. The trial court ruled that there was insufficient evidence to support an entrapment defense and the defendant was convicted of possession of cocaine with intent to sell and deliver and sale and delivery of cocaine. Id. The defendant appealed.
On appeal, the court ruled that the defendant presented sufficient evidence to support a jury instruction on the defense of entrapment. Id. at 439. The court referenced State v.Walker and stated that entrapment instructions should be given even when the state’s evidence conflicts with the defendant’s evidence. Id. at 437. In determining that the defendant was entitled to entrapment instructions, the court noted how the defendant never attempted to find drugs for the agents and that he only agreed to purchase the drugs after being urged by Sheets. Id. A new trial was ordered for the defendant.
Although entrapment is a difficult defense to prove, it is possible. If you feel that you have been entrapped, contact the law office of Rosensteel Fleishman for a consultation with an experienced attorney.