State v. Armstrong , 22 N.C. App. 36 ( 1974 )

CAMPBELL, Judge.

The defendant contends that it was error for the trial court not to grant his motion for judgment as of nonsuit in that the evidence established that the defendant was entrapped. The defendant also assigns as error the instruction by the trial court that a sale and physical transfer of the marijuana would be a “distribution” and the instruction that to be convicted of distribution the defendant had to know that the substance was marijuana. Defendant’s contention is that the judge’s instruction-carried the implication that in any circumstances, including entrapment, if defendant knew that the substance was marijuana, and if a transfer actually took place, then the defendant should be found guilty.

The charge of the trial court must be read contextually. It is evident that the trial court, in a very articulate and understandable fashion, instructed the jury on all aspects of the case, including a detailed instruction on entrapment and a review of the evidence of both sides relating to entrapment. The fact finders could not have been under any misapprehension as to the applicability of the defense of entrapment by the charge of the trial court. In State v. Fletcher and State v. Arnold, 279 N.C. 85, 181 S.E. 2d 405 (1971), the court stated:

“The North Carolina cases on entrapment are accurately summarized in 2 Strong’s N.' C. Index 2d, Criminal Law, § 7, as follows:

‘Mere initiation, instigation, invitation, or exposure to temptation by enforcement officers is not sufficient to establish the defense of entrapment, it being necessary that the defendants would not have committed the offense except for misrepresentation, trickery, persuasion, or fraud. . . . [I]f the officer or agent does nothing more than afford to the person charged an opportunity to commit the offense such is not entrapment. Therefore, mere acts affording defendant an opportunity to commit the offense and steps taken to apprehend him in its commission, or even the fact that officers pretended to act in conjunction with the defendant in committing an offense, does not constitute entrapment when the idea of committing the offense originates with the defendant or defendants.’ ”

On the issue of nonsuit, the evidence for the State was as set out above. When viewed in the light most favorable to the State, the evidence is sufficient to withstand a motion for judgment as of nonsuit. We find no error.

No error.

Judges Morris and Vaughn concur.