State v. Bradshaw , 12 N.C. App. 510 ( 1971 )

183 S.E.2d 787 (1971) 12 N.C. App. 510

STATE of North Carolina
v.
Charles Richard BRADSHAW.

No. 7115SC501.

Court of Appeals of North Carolina.

October 20, 1971.

Atty. Gen. Robert Morgan by Asst. Attys. Gen. William W. Melvin and William B. Ray, for the State.

Donnell S. Kelly, Burlington, for defendant appellant.

MORRIS, Judge.

Defendant appellant first assigns as error the court's denial of his motion to dismiss at the conclusion of the State's evidence. The denial of a motion for nonsuit made at the conclusion of the State's evidence was waived by the defendant's introduction of evidence and is not available to him on appeal. State v. Greene, 278 N.C. 649, 180 S.E.2d 789 (1971). In any event, the evidence was sufficient to go to the jury.

Defendant appellant next contends that the court erred in refusing defendant's written request for special instructions to the jury on the issue of entrapment. Only a portion of the court's charge to which defendant excepted was included in the record on appeal and is as follows: "* * and you are instructed Ladies and Gentlemen of the Jury, that there was no evidence as to entrapment in this case, that he (defendant) was given the opportunity to commit the crime and was not induced to do so." (Emphasis added.)

"Where the charge of the court is not in the record, it will be presumed that the court correctly instructed the jury on every phase of the case, with respect to both law and evidence, and the denial of a request for special instructions cannot be held prejudicial." 1 Strong, N.C. Index 2d, Appeal and Error, §§ 42, 46, pp. 185, 186, 191; State v. Pinyatello, 272 N.C. 312, 158 S.E.2d 596 (1968).

The assignment of error for failure to instruct necessitates inclusion of the entire charge in the record. The assignment of error for failure to instruct in this case might, therefore, for sound reasons, be dismissed as ineffectual. Due to the possible prejudice to the defendant appellant, however, we choose to consider the question sought to be raised. State v. Brooks, 225 N.C. 662, 36 S.E.2d 238 (1945).

We believe the above excerpt from the charge appearing in the record that there was no evidence of entrapment is erroneous and to recognize the error does not require consideration of the whole charge.

"Whether the defendant was entitled to have the defense of entrapment submitted to the jury is to be determined by the evidence. 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); see also 3 Strong, N.C. Index 2d, Criminal Law, § 121.

From the facts of this case we believe there was sufficient credible evidence to submit the issue of entrapment to the jury. The prevailing rule in this jurisdiction is that mere initiation, instigation, invitation or temptation by enforcement officers is not sufficient to establish the defense of entrapment. It is also necessary to show that the defendant would not have committed the offense except for the persuasion, encouragement, inducement, and importunity of the officer or agent. 2 Strong, N.C. Index 2d, Criminal Law, § 7; State v. Swaney, 277 N.C. 602, 178 S.E.2d 399 (1971). From the record it appears that both the informant and the undercover agent in this case were connected with the State, and if they induced the defendant to commit the offense, it would constitute a good defense. State v. Jackson, 243 N.C. 216, 90 S.E.2d 507 (1951). The evidence is conflicting as to the presence of a gun, but Officer Scott never denied that he did have a gun when, in the presence of the defendant the informant suggested that the officer did have a gun. Credible evidence of persuasion used by the State to move the defendant to criminal conduct requires the court to instruct the jury as to the legal principle of entrapment and the weight to be given such evidence is for determination by the jury. State v. Caldwell, 249 N.C. 56, 105 S.E.2d 189 (1958); State v. Yost, 9 N.C.App. 671, 177 S.E.2d 320 (1970). The court's instruction that there was no evidence of entrapment was erroneous.

New trial.

BRITT and PARKER, JJ., concur.