State v. Board , 37 N.C. App. 581 ( 1978 )

CLARK, Judge.

Defendant assigns as error the denial of his motion for non-suit, contending that the evidence established entrapment as a matter of law and relying on State v. Stanley, 288 N.C. 19, 215 S.E. 2d 589 (1975).

This Court in State v. Braun, 31 N.C. App. 101, 228 S.E. 2d 466, app. dismissed, 291 N.C. 449, 230 S.E. 2d 766 (1976), held that the burden of proving entrapment to the satisfaction of the jury was on the defendant and does not contravene the decision of Mullaney v. Wilbur, 421 U.S. 684, 95 S.Ct. 1881, 44 L.Ed. 2d 508 (1975), or of State v. Hankerson, 288 N.C. 632, 220 S.E. 2d 575 (1975), reversed on other grounds, 429 U.S. 815, 97 S.Ct. 2339, 53 L.Ed. 2d 306 (1977).

In Stanley, supra, the ruling was based on the State’s uncon-tradicted evidence, corroborated by the defendant’s evidence. In the case sub judice, the entrapment evidence is conflicting. The entrapment issue was raised when the case was before this court in State v. Board, 29 N.C. App. 440, 224 S.E. 2d 650 (1976), where the evidence relating to the issue was substantially the same as that on retrial. This Court ordered a new trial for error in jury instructions. At the original trial and retrial the entrapment issue was a question of fact for the jury to determine, and at both trials the determination was against the defendant. We find no error. The court can find entrapment as a matter of law only where the undisputed evidence and inferences compel a finding that the defendant was lured by the officer, or agent of the officer, into an action he was not predisposed to take. State v. Stanley, supra.

Defendant argues that the jury verdict, guilty of possession of MDA on 8 February 1975, was repugnant and should have been set aside. It is noted that defendant testified on that occasion that he was merely acting as agent for S.B.I. Agent Adcox, who gave him money and asked defendant to buy the drugs for him. The jury could have based its verdict on this testimony. It is not required that the verdict be consistent; therefore, a verdict of guilty of a lesser degree of the crime when all the evidence points to the graver crime, although illogical and incongruous, or a verdict of guilty on one count and not guilty on the other, when the same act results in both offenses, will not be disturbed. 4 Strong’s N.C. Index 3d, Criminal Law, § 124.5.

Defendant makes the double-barrelled argument that the court erred in allowing counsel for the State during argument to read to the jury portions of G.S. 90-89 relating to Schedule I drugs, and in refusing to allow defense counsel to read portions of the decisions in Sherman v. United States, 356 U.S. 369, 78 S.Ct. 819, 2 L.Ed. 2d 848 (1958), and in State v. Stanley, supra. Defense counsel wanted to read some of the evidence recited in the decisions. Wide latitude is allowed in argument, and counsel may argue to the jury the law and the facts and all reasonable inferences to be drawn therefrom, but counsel may not argue the facts of other cases to the jury. State v. Spence, 271 N.C. 23, 155 S.E. 2d 802 (1967); 12 Strong’s N.C. Index 3d, Trial, § 11. Counsel may in argument to the jury read or state to the jury a statute or other rule of law relevant to the case. State v. Britt, 285 N.C. 256, 204 S.E. 2d 817 (1974).

In the first trial of this case the court’s judgment in one case provided for four weekend jail sentences, and the others were consolidated and sentence suspended and defendant placed on probation. On retrial the judgment imposed a maximum term of 18 months as a committed youthful offender. Defendant argues that the trial court did not have authority to impose a more severe sentence upon retrial. We do not agree. In the case sub judice the trial judge found defendant had an intervening conviction of possession of marijuana, and this finding appears in the record on appeal and in the Judgment and Commitment. North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed 2d 656 (1969), held that when a judge imposes a more severe sentence upon retrial the reasons for doing so must appear affirmatively in the record to support the severer sentence. The fact that defendant after his original conviction and before retrial was convicted of another drug offense fully justified the more severe sentence imposed in the case before us.

We have carefully considered defendant’s other assignments of error and find them to be without merit. The defendant had a fair trial free from prejudicial error.

No error.

Judges Parker and Erwin concur.