                             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.
                                              -2-
       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
                                       -3-
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
                                         -4-
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.
                                       -5-
    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,
                                                 -6-
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
                                                   -7-
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,
                                    -8-
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
                                        -9-
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
                                          -10-
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
                                          -11-
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,
                                        -12-
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
                                    -13-
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.
                                          -14-
      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
                                         -15-
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
                                      -16-
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.
