State v. Ott , 236 N.C. App. 648 ( 2014 )

NO. COA13-1412
NORTH CAROLINA COURT OF APPEALS
Filed: 7 October 2014
STATE OF NORTH CAROLINA
v. Rowan County
No. 11 CRS 55731-32, 55734
MELISSA LEE OTT
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.
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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.
Background
In 2011, Emily Eudy (“Eudy”), a friend of defendant,
contacted the Rowan County Sheriff’s Office and offered to serve
as a confidential informant in an attempt to receive a more
lenient sentence for her pending drug charges. Eudy informed
Rowan Sherriff’s Detective Jay Davis (“Detective Davis”) that
defendant had narcotics for sale and agreed to introduce an
undercover officer to defendant to make a purchase. Eudy and
defendant had been friends for about one year.
On 27 July 2011, the Rowan County Sherriff’s office
provided Detective Kevin Black (“Detective Black”) with an
undercover vehicle, $150 in special funds, and a recording
device. Detective Black drove Eudy to defendant’s house.
According to the audio/video recording which was shown to the
jury at trial, the following interaction took place: defendant
told Detective Black that she usually only dealt drugs to six
people and asked Detective Black to pull up his shirt to prove
that he was not a police officer. Detective Black told
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defendant that he had $150 to spend on pills. Defendant pulled
three pill bottles out of her purse and asked if he was
interested in “5’s” (5 milligram pills). Detective Black
acknowledged that he was interested in purchasing the pills, and
defendant poured a bottle of white pills onto the table and
counted out 40 5 mg pills of hydrocodone and acetaminophen.
Defendant told Detective Black that she could sell him the white
pills for $3 and asked if he also wanted to buy 10 mg pills.
After Detective Black said he did, defendant poured blue and
yellow pills onto the table and told him that she could get $7
to $8 for the blue pills. Defendant also asked Detective Black
if he wanted some speed and claimed that she sold 90 percent of
her speed to truckers.
In total, defendant sold Detective Black 34.2 grams of
pills which included 40 white pills, 9 blue pills, and 1 yellow
pill. Analysis by the Iredell County Sherriff’s lab confirmed
the presence of hydrocodone in the blue and white pills.
On 31 July 2011, defendant was indicted for (1) trafficking
in 28 grams or more of a preparation opium by sale to Detective
Black; (2) trafficking in 28 grams or more of a preparation
opium by possession; and (3) possession of a preparation opium
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with intent to sell and deliver. The matter came on for trial
on 2 July 2013.
At trial, defendant took the stand in her own defense; she
testified that she was a drug user, not a seller, and only sold
the pills as a favor to Eudy. Defendant claimed that she
“absolute[ly]” would not have sold the pills but for Eudy’s
involvement. According to defendant, Eudy “wanted [her] to sell
the pills to [Detective Black] and convince him that . . . he
could keep coming back for more . . . so that [Eudy] wouldn’t
get in trouble with her husband.” Defendant also alleged that,
on the morning of the sale, Eudy gave her three bottles of
pills, coached her on what to say, and told her that she could
keep the 7.5 mg pills for herself for helping Eudy complete the
sale. Defendant claimed that she was just trying to “complete
the act [Eudy] wanted [her] to do” and was only “talking the
talk” when she spoke to Detective Black about pricing, people
she usually dealt with, and selling speed to truckers. In other
words, according to defendant, Eudy provided her details on
exactly what to say to Detective Black during the sale.
However, defendant did admit that, on two prior occasions, she
sold cocaine to Eudy and had previously been convicted of
possession of cocaine and drug paraphernalia.
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At trial, Eudy also testified as a witness for the defense.
Eudy refuted defendant’s claim that she did not sell drugs,
claiming that defendant had been selling crack cocaine and pain
pills for the entire time she knew defendant. Moreover, she
denied providing the pills to defendant. Eudy was not convicted
of the pending trafficking charge but was convicted of attempted
trafficking and received a probationary sentence.
At the beginning of the charge conference, the trial court
listed the jury instructions it intended to give, including an
instruction on the defense of entrapment. The State objected,
and, after hearing arguments from both parties, the trial judge
ruled that the evidence established defendant’s predisposition
to commit the crime and, therefore, declined to give the defense
instruction. On 5 July 2013, the jury found defendant guilty of
all three charges. The trial court sentenced defendant to a
minimum term of 225 months to a maximum term of 279 months
imprisonment and fined her $500,000. Defendant gave timely
notice of appeal.
Discussion
Defendant’s sole argument on appeal is that the trial court
erred by failing to give the requested instruction on the
defense of entrapment. Specifically, defendant contends that,
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taken in the light most favorable to defendant, the evidence
shows that the plan to sell the pills originated in the mind of
Eudy, who was acting as an agent for law enforcement, and
defendant was only convinced to do so through trickery and
persuasion. Therefore, the evidence was sufficient to justify a
jury instruction on entrapment. We agree.
Whether the evidence, taken in the light most favorable to
the defendant, is sufficient to require the trial court to
instruct on a defense of entrapment is an issue of law that is
determined by an appellate court de novo. State v. Redmon, 164
N.C. App. 658, 662-664, 596 S.E.2d 854, 858-859 (2004). “Under
a de novo review, the court considers the matter anew and freely
substitutes its own judgment, for that of the lower tribunal.”
State v. Williams, 362 N.C. 628, 632-33, 669 S.E.2d 290, 294
(2008) (internal quotation marks omitted).
“Entrapment is complete defense to the crime charged.”
State v. Branham, 153 N.C. App. 91, 99, 569 S.E.2d 24, 29
(2002). To be entitled to the defense of entrapment, a
defendant must present “some credible evidence,” State v.
Thomas, __ N.C. App. __, __, 742 S.E.2d 307, 309, disc. review
denied, __ N.C. __, 747 S.E.2d 555 (2013), of the following
elements: “(1) acts of persuasion, trickery, or fraud carried
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out by law enforcement officers or their agents to induce a
defendant to commit a crime, [and that] (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. Walker, 295 N.C. 510, 513,
246 S.E.2d 748, 750 (1978). 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). “The issue of whether or not a
defendant was entrapped is generally a question of fact to be
determined by the jury,” State v. Collins, 160 N.C. App. 310,
320, 585 S.E.2d 481, 489 (2003), and when the “defendant’s
evidence creates an issue of fact as to entrapment, then the
jury must be instructed on the defense of entrapment[,]” State
v. Branham, 153 N.C. App. 91, 100, 569 S.E.2d 24, 29 (2002).
However, the entrapment defense is not available to a
defendant who has a “predisposition to commit the crime
independent of governmental inducement and influence.” 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,
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acquiescence in, or willingness to cooperate in a criminal plan
where the police merely afford the defendant an opportunity to
commit the crime.” Id. at 31, 296 S.E.2d at 450.
Here, taking the evidence in a light most favorable to
defendant and, in particular, defendant’s testimony, there was
sufficient evidence that defendant was induced to commit the
sale through acts of persuasion and trickery to warrant the
instruction. Specifically, according to defendant’s evidence,
Eudy was acting as an agent for the Sherriff’s office when she
approached defendant, initiated a conversation about selling
pills to her buyer, provided defendant the pills, and coached
her on what to say during the sale. While it is undisputed that
defendant was a drug user, defendant claimed that she had never
sold pills to anyone before. In fact, the only reason she
agreed to sell them was because she was “desperate for some
pills,” and she believed Eudy’s story that she did not want her
husband to find out what she was doing. Defendant’s testimony
established that Eudy told defendant exactly what to say such
that, during the encounter, defendant was simply playing a role
which was defined and created by an agent of law enforcement.
In sum, this evidence, if believed, shows that Eudy not only
came up with the entire plan to sell the drugs but also
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persuaded defendant, who denied being a drug dealer, to sell the
pills to Detective Black by promising her pills in exchange and
by pleading with her for her help to keep the sale secret from
her husband. Furthermore, viewing defendant’s evidence as true,
she had no predisposition to commit the crime of selling pills.
Although Eudy disputed this fact at trial, as this Court has
noted, “[f]or purposes of the entrapment issue, we must assume
that [the] defendant’s testimony is true[,]” State v. Foster, __
N.C. App. __, __, __ S.E.2d __, ___ (Aug. 5, 2014) (No. COA13-
1084). Thus, defendant’s evidence was sufficient to create an
issue as to inducement and lack of predisposition to commit the
offense, and the trial court should have instructed on
entrapment.
The case of State v. Jamerson, 64 N.C. App. 301, 307
S.E.2d 436 (1983), provides guidance. In Jamerson, this Court
held that the defendant introduced sufficient evidence of
inducement to justify a jury instruction on entrapment by
showing: (1) an undercover officer and his informant initiated a
conversation about selling drugs with the defendant; (2) the
officer repeatedly urged the defendant to provide the drugs; (3)
the informant located a person who would sell the drugs and
drove the officer and the defendant to the location; and (4) the
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officer then provided the defendant the money to buy the drugs.
Id. at 303-304, 307 S.e.2d at 437. In a similar case, this
Court has also held that there is sufficient evidence of
inducement to justify a jury instruction on entrapment when the
defendant is promised something in return for participating in
the sale of drugs. State v. Blackwell, 67 N.C. App. 432, 438,
313 S.E.2d 797, 801 (1984) (defendant was promised a job if he
would sell drugs to an undercover officer).
Similarly, in State v. Stanley, 288 N.C. 19, 32-33, 215
S.E.2d 589, 597-98 (1975), our Supreme Court held that the
evidence was sufficient to establish that the defendant was
entrapped as a matter of law. In Stanley, the undisputed
evidence showed that an undercover officer befriended the
defendant based on false pretenses, repeatedly asked the
defendant about purchasing drugs, persuaded the defendant to
purchase drugs for him, and supplied the defendant with the
money to do so. Id. at 32, 215 S.E.2d at 597. Prior to his
arrest for possession of a controlled substance, the defendant
admitted to purchasing drugs that turned out to be counterfeit.
Id. at 22, 215 S.E.2d at 591. The Supreme Court held that this
evidence was sufficient to demonstrate that the criminal design
originated with the law enforcement officer, and there was no
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evidence that defendant was predisposed to commit the crime.
Id. at 32-33, 215 S.E.2d at 597.
We believe that the facts of this case are analogous to
Jamerson and Stanley. Here, defendant testified that she was
approached by Eudy, an agent of law enforcement, who initiated
the discussion about selling drugs. Defendant testified that
not only did Eudy initiate the conversation, but that the entire
plan was Eudy’s idea. Similar to the Jamerson and Stanley
defendants, defendant did not locate the drugs on her own but
they were provided to her by Eudy. Furthermore, defendant
testified that Eudy instructed her on what to say and how to act
during the sale.
In sum, viewed in a light most favorable to defendant,
defendant’s testimony, if believed, would permit the jury to
find that the idea for the crime of selling pills originated
with and was pursued by Eudy, with no indication that defendant
had a predisposition to sell pills. Thus, as in Jamerson and
Stanley, the evidence was sufficient to warrant an instruction
on entrapment.
The State, nevertheless, argues that defendant was
predisposed to commit the crime and that Eudy simply afforded
defendant the opportunity to sell the pills. Consequently,
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relying on State v. Thompson, 141 N.C. App. 698, 707, 543
S.E.2d 160, 166 (2001), the State contends that defendant was
not entitled to the instruction on entrapment, noting that this
Court has consistently held that the sale of drugs as a favor is
“not evidence of inducement, just opportunity to commit the
offense.” We disagree.
In Thompson, id. at 699, 543 S.E.2d at 162, the sheriff’s
office received information from a confidential informant that
the defendant was selling narcotics. In order to “ascertain the
validity of the informant’s information,” law enforcement
officers arranged for and observed the confidential informant
buy cocaine from the defendant. Id. The informant then
introduced an undercover narcotics detective to the defendant.
Id. When the undercover officer initially asked to buy cocaine,
defendant claimed that he “could not help” because he only used
heroin. Id. at 700, 543 S.E.2d at 162. According to the
defendant, however, the informant told him that the defendant’s
upstairs neighbor was a supplier. Id. On two separate
occasions, the defendant purchased cocaine from his upstairs
neighbor for the undercover officer. Id. At trial, the
defendant testified that, although he was a recovering heroin
addict, he had no prior convictions for drug dealing, had never
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gotten cocaine for the confidential informant before, and did
not know that the upstairs neighbor was a drug dealer. Id. The
trial court denied his request for an entrapment instruction.
Id. at 699, 543 S.E.2d at 162.
On appeal, the defendant argued that the trial court
committed reversible error by refusing to instruct on
entrapment. However, this Court disagreed, noting:
Neither the informant nor O’Neil provided
gifts or made promises before asking to
purchase cocaine from defendant. Also,
although defendant testified that he had
been reluctant to sell cocaine to the
informant and O’Neil, his own testimony
showed defendant required little urging
before acquiescing to their requests. “That
[the undercover officer] gave defendant the
money and asked him to obtain the cocaine is
not evidence of inducement, just an
opportunity to commit the offense.” State
v. Martin, 77 N.C. App. 61, 67, 334 S.E.2d
459, 463 (1985), cert. denied, 317 N.C. 711,
347 S.E.2d 47 (1986). As we held in Martin,
selling drugs as a favor and taking no
profit from the transaction does not entitle
a defendant to an instruction on entrapment.
See also State v. Booker, 33 N.C. App. 223,
234 S.E.2d 417 (1977). Defendant failed to
introduce sufficient evidence of persuasion
by either the informant or O’Neil to suggest
that the criminal design originated with the
law enforcement agents and not with
defendant.
Id. at 707, 543 S.E.2d at 166. Thus, the Court concluded that
the evidence did not warrant the instruction. Id.
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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
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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 ___, ___ S.E.2d at ___, Eudy initiated a
conversation with defendant and asked her to sell pills to
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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.
Judges DILLON and DAVIS concur.