An unpublished opinion of the North Carolina Court of Appeals does not constitute
controlling legal authority. Citation is disfavored, but may be permitted in accordance with
the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.


                IN THE COURT OF APPEALS OF NORTH CAROLINA

                                          No. COA15-85

                                     Filed: 20 October 2015

Durham County, No. 13CRS050538

STATE OF NORTH CAROLINA

               v.

MILTON CARL MORGAN


       Appeal by Defendant from judgment entered 11 June 2014 by Judge Michael

O’Foghludha in Durham County Superior Court. Heard in the Court of Appeals 12

October 2015.


       Attorney General Roy A. Cooper, III, by Assistant Attorney General Brian D.
       Rabinovitz, for the State.

       Ward, Smith & Norris, P.A., by Kirby H. Smith, III, for the Defendant.


       DILLON, Judge.


       A jury found Defendant guilty of possession of cocaine, sale of cocaine, delivery

of cocaine, and intentionally keeping or maintaining a dwelling for the purpose of

keeping or selling cocaine. After arresting judgment on the delivery conviction,1 the

trial court consolidated the remaining offenses for judgment and sentenced



       1See  State v. Moore, 327 N.C. 378, 382, 395 S.E.2d 124, 127 (1990) (“[A] defendant may not . .
. be convicted under N.C.G.S. § 90-95(a)(1) of both the sale and the delivery of a controlled substance
arising from a single transfer.”).
                                    STATE V. MORGAN

                                    Opinion of the Court



Defendant to a suspended prison term of eight to nineteen months and twenty-four

months of supervised probation. Defendant gave notice of appeal in open court.

       In July of 2012, a Durham police officer participating in a drug market

intervention (“DMI”) project at the Duke Manor apartment complex utilized a

confidential informant to make a “controlled buy” of illicit drugs, equipping her with

a device to record the transaction. The informant purchased one-tenth of a gram of

crack cocaine from Defendant for $20 inside Defendant’s apartment.

       Both the officer and the informant testified at Defendant’s trial. The informant

explained that she knew Defendant because she “used to go over to his apartment

with some other friends, and . . . would get high” on crack cocaine, painkillers, or

heroin. Although she had not “bought” drugs from Defendant prior to the day of the

“controlled buy,” she had previously obtained drugs from him in “[e]xchange for sex

. . . [p]robably a handful of times.”

       According to the informant, she went to Defendant’s apartment “to ask him to

call somebody to purchase drugs[.]” Defendant instead “told [her] he had something”

and that “he had it for sale if [she] wanted to get it[.]” The informant handed

Defendant a $20 bill and “asked him for marijuana and crack cocaine.” Defendant

instead gave her “just the cocaine.” The informant left Defendant and returned to

the officer’s location and surrendered the contraband to him.        The audio-visual




                                           -2-
                                  STATE V. MORGAN

                                  Opinion of the Court



recording of her activities was admitted into evidence and played to the jury for

illustrative purposes.

      Defendant chose not to testify and offered no evidence to rebut the State’s case.

On appeal, he claims only that the trial court erred in denying his request for a jury

instruction on the defense of entrapment. We disagree.

      Entrapment is an affirmative defense for which the defendant bears the

burden of proof. State v. Adams, 218 N.C. App. 589, 592, 721 S.E.2d 391, 394 (2012).

Before a jury instruction on entrapment is required, “there must be some credible

evidence tending to support the defendant’s contention that he was a victim of

entrapment, as that term is known to the law.” State v. Walker, 295 N.C. 510, 513,

246 S.E.2d 748, 749 (1978) (internal marks omitted). “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 trial court’s refusal to instruct

the jury on entrapment is reviewed de novo. State v. Ott, ___ N.C. App. ___, ___, 763

S.E.2d 530, 532 (2014).

      To support an instruction on a defense of entrapment, a defendant must show

that “(1) law enforcement officers or their agents engaged in acts of persuasion,

trickery or fraud to induce the defendant to commit a crime, and (2) the criminal




                                         -3-
                                 STATE V. MORGAN

                                 Opinion of the Court



design originated in the minds of those officials, rather than with the defendant.”

Adams, 218 N.C. App. at 593, 721 S.E.2d at 394 (internal marks omitted). Moreover,

            [e]ntrapment is not available to a defendant who was
            predisposed to commit the crime charged absent the
            inducement of law enforcement officials. The burden to
            prove a lack of predisposition remains with the defendant
            and is not shifted to the prosecution. Predisposition may
            be shown by a defendant’s ready compliance, acquiescence
            in, or willingness to cooperate in the criminal plan where
            the police merely afford the defendant an opportunity to
            commit the crime.

Id. (internal marks and citation omitted).

      In the present case, Defendant presented no evidence of the “lack of

predisposition” required to establish entrapment. Although the informant came to

Defendant’s apartment and asked him “to call somebody for [her] to purchase drugs,”

it was Defendant who volunteered that “he had something.” On cross-examination,

the informant gave her most complete account of their conversation:

            Q      On that day, July 6, 2012, did [defendant] offer to
            sell them to you or did you have to ask him to sell them to
            you?

            A       He told me he had something, and I told him I was
            going to go look for something else because I was looking
            for a larger quantity.

            Q     So he didn’t offer to sell them to you. You had to ask
            him and persuade him to do that?

            A      He said he had it for sale if I wanted to get it, but I
            larger – I was looking for a larger quantity.



                                        -4-
                                         STATE V. MORGAN

                                         Opinion of the Court



(Emphasis added).         Even viewed in the light most favorable to Defendant, this

testimony has no tendency to show that Defendant was entrapped. “Merely asking

defendant to sell drugs to her or telling him she was interested in buying some drugs

did not constitute an inducement to defendant to commit a crime he did not otherwise

contemplate committing.” State v. Rowe, 33 N.C. App. 611, 614, 235 S.E.2d 873, 875

(1977). See also State v. Thompson, 141 N.C. App. 698, 707, 543 S.E.2d 160, 166

(2001) (requiring no entrapment instruction where “defendant required little urging

before acquiescing” to the informant’s request to buy cocaine).

       This case does not involve repeated entreaties by an agent of law enforcement

overcoming the will of a reluctant and largely passive Defendant; nor did the

informant play on Defendant’s emotions or sympathy to induce him to provide her

with drugs.2      See, e.g., Ott, ___ N.C. App. at ___, 763 S.E.2d at 533 (requiring

instruction where the informant-friend “not only came up with the entire plan to sell

the drugs but also persuaded defendant . . . to sell the pills . . . by promising her pills

in exchange and by pleading with her for her help to keep the sale secret from her

husband.”); State v. Foster, ___ N.C. App. ___, ___, 761 S.E.2d 208, 215 (2014) (finding

evidence of entrapment where undercover officer’s “flirtatious behavior towards



       2The   informant’s subjective assessment that defendant “didn’t deal drugs” does not support an
entrapment instruction, given Defendant’s ready willingness to sell her the cocaine on 6 July 2012 as
well as her testimony that Defendant previously traded her drugs for sex. See, e.g., State v. Carr, 145
N.C. App. 335, 343, 549 S.E.2d 897, 902 (2001) (“[T]he term ‘sale,’ in the context of the North Carolina
Controlled Substances Act, means the exchange of a controlled substance for money or any other form
of consideration.”).

                                                 -5-
                                 STATE V. MORGAN

                                 Opinion of the Court



defendant combined with his persistent requests for cocaine persuaded defendant to

obtain the cocaine”); State v. Walker, 66 N.C. App. 367, 368-69, 311 S.E.2d 329, 330-

31 (1984) (multiple requests by informant who was “life-long friends” with

defendant). Accordingly, we conclude the trial court properly denied Defendant’s

request to instruct the jury on entrapment.

      NO ERROR.

      Chief Judge McGEE and Judge HUNTER, JR., concur.

      Report per Rule 30(e).




                                        -6-
