State v. Blackwell , 67 N.C. App. 432 ( 1984 )

313 S.E.2d 797 (1984)

STATE of North Carolina
v.
Raynard BLACKWELL.

No. 839SC724.

Court of Appeals of North Carolina.

April 3, 1984.

Atty. Gen. Rufus L. Edmisten by Asst. Atty. Gen. Douglas A. Johnston, Raleigh, for the State.

Ramsey, Hubbard, Galloway & Cates by Mark Galloway, Roxboro, for defendant-appellant.

EAGLES, Judge.

Defendant assigns as error the trial court's failure to instruct on entrapment. Defendant contends that the evidence concerning entrapment was in conflict and that it was thus an issue for the jury. We agree.

It is the duty of the court to instruct the jury on all the substantive features of a case raised by the evidence, and all defenses arising from the evidence constitute substantive features of a case. State v. Brock, 305 N.C. 532, 540, 290 S.E.2d 566, 572 (1982). The defense of entrapment requires proof of two essential elements: (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) that the criminal design originated in the minds of the law enforcement officers, rather than the innocent defendant, such that the crime was the product of the creative activity of law enforcement authorities. State v. Stanley, 288 N.C. 19, 215 S.E.2d 589 (1975); State v. Grier, 51 N.C.App. 209, 275 S.E.2d 560 (1981). The State's evidence and defendant's evidence both tend to show "acts of persuasion" by Barney to induce defendant to purchase drugs, thus satisfying the first requirement for entrapment. The critical and more difficult question here is whether there was evidence that defendant was induced by Barney to take action that he was not predisposed to take.

It is clear from the record that the evidence concerning defendant's predisposition to criminal activity was in conflict. The State's evidence tends to show that defendant told Barney that he could get drugs for Barney before there was any discussion about opening the pool hall; that defendant bought drugs for Barney at their first meeting; and that defendant knew where to make a big drug buy in Caswell County.

Defendant's evidence tended to show that Barney knew that defendant was unemployed and in need of money; that Barney told defendant that he was interested in opening the pool hall and that defendant could manage it before there was any discussion of drugs; that Barney was the first one to raise the subject of drugs; that defendant told Barney that he "couldn't find any" and made no drug buy for Barney at their first meeting; that Barney sought out defendant and continued to imply that he was going to open the pool hall and that defendant would manage it; that defendant had difficulty locating drugs to buy for Barney; that Barney sometimes gave defendant money; that defendant had never been to Caswell County to buy drugs before 14 March 1982; and that defendant made no profit on either of the drug buys he made for Barney.

In State v. Grier, supra, the State's evidence tended to show that defendant first raised the issue of drug purchase; that defendant knew where and how to make a drug buy; and that others viewed defendant as someone involved in drug trafficking. Defendant's evidence tended to show that the undercover agent knew defendant was unemployed and in need of money; that the agent offered defendant financial assistance and bought beer, food, and cigarettes for defendant; that the agent first raised the subject of a drug buy; that the agent drove defendant to the locations where defendant bought drugs; and that defendant did not profit on the drug buys. Based on that evidence, this court held that: "Since evidence of entrapment must be uncontradicted in order for the judge to take the issue from the jury, the trial judge acted properly in charging the jury on the defense and leaving it to their determination as an issue of fact." 51 N.C.App. at 212-13, 275 S.E.2d at 563. Our Supreme Court has also noted: "Ordinarily, if the evidence presents an issue of entrapment it is a question of fact for the jury to determine. 1 Whartons Criminal Law and Procedure, s. 132 (supp.)" State v. Stanley, 288 N.C. at 32, 215 S.E.2d at 597.

We find here that defendant presented evidence that he was not predisposed to buy drugs but sought out information on how to and actually did buy drugs only because he needed a job and he believed that Barney had promised him a job. We do not find entrapment as a matter of law but find that the evidence here does present the issue of entrapment. The trial judge should have charged the jury on entrapment and left it to their determination as an issue of fact.

The trial court declined to submit instructions on the elements of the offense of sale or delivery of marijuana because it found as a matter of law that "there was no entrapment" and because defendant had admitted the transfer of marijuana. Because we hold that the jury should have been instructed as to the defense of entrapment, we hold that it was error for the trial judge to refuse to charge the jury on the elements of the sale or delivery offense. Because we remand for a new trial based on the trial judge's denial of defendant's request for an instruction on entrapment and the trial judge's refusal to instruct on the elements of the offense, we need not address defendant's remaining assignments of error.

New trial.

HEDRICK and HILL, JJ., concur.