State v. Booker

234 S.E.2d 417 (1977) 33 N.C. App. 223

STATE of North Carolina
v.
Billy BOOKER.

No. 7615SC864.

Court of Appeals of North Carolina.

May 4, 1977.

Atty. Gen. Rufus L. Edmisten by Associate Atty. Jesse C. Brake, Raleigh, for the State.

Allen, Allen, Walker & Washburn by J. Kent Washburn, Burlington, for defendant-appellant.

HEDRICK, Judge.

Defendant's first assignment of error relates to the exclusion of certain testimony relating to the manner in which the undercover agent in this case had conducted himself in other similar drug arrests. Since the answers to the questions were not preserved for the record, we are unable to say whether the exclusion of the evidence is prejudicial. 4 Strong, N.C. Index 3d, Criminal Law § 169.6 (1976). Furthermore, a careful examination of each exception upon which this assignment of error is based reveals that each question called for irrelevant testimony.

Defendant's remaining assignments of error relate to the trial judge's instructions to the jury on the defense of entrapment and his failure to dismiss the action because the defense of entrapment was established as a matter of law.

Entrapment with respect to a particular crime exists when the intent to commit that crime originates from the inducement of a law enforcement officer or his agent, and the defendant would not have committed the crime but for such inducement. State v. Burnette, 242 N.C. 164, 87 S.E.2d 191 (1955); State v. Stanback, 19 N.C.App. 375, 198 S.E.2d 759 (1973); cert. denied, 284 N.C. 258, 200 S.E.2d 658 (1973); cert. denied, 415 U.S. 990, 94 S. Ct. 1589, 39 L. Ed. 2d 887 (1974). However there is no entrapment when the officer merely affords the defendant the opportunity to commit the crime. State v. Stanback, supra; State v. Hendrix, 19 N.C.App. 99, 197 S.E.2d 892 (1973).

"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."

4 Strong, N.C. Index 3d, Criminal Law § 7, p. 45 (1976).

The evidence of the defendant in the present case, in our opinion, is not sufficient to raise an issue of entrapment. The evidence at most shows that the officer afforded the defendant the opportunity to commit the offenses. The fact that the officer provided the money to purchase the drugs and loaned defendant his car to go get the drugs is not sufficient evidence to show inducement on the part of the officer. The court's instructions with respect to entrapment, therefore, were mere surplusage and could have in no way prejudiced the defendant. State v. Rigsbee, 285 N.C. 708, 208 S.E.2d 656 (1974).

No error.

BRITT and ARNOLD, JJ., concur.