                                 NO. COA13-1084

                       NORTH CAROLINA COURT OF APPEALS

                            Filed: 5 August 2014


STATE OF NORTH CAROLINA

    v.                                       Mecklenburg County
                                             No. 11 CRS 230328
BRANDON MIKAL FOSTER,
          Defendant.


    Appeal by defendant from judgment entered 11 October 2012

by Judge Linwood O. Foust in Mecklenburg County Superior Court.

Heard in the Court of Appeals 19 March 2014.


    Attorney General Roy Cooper, by Assistant Attorney General
    Alesia M. Balshakova, for the State.

    Gilda C. Rodriguez for defendant-appellant.


    GEER, Judge.


    Defendant Brandon Mikal Foster appeals his conviction of

delivery of cocaine.       Defendant argues on appeal that the trial

court erred in refusing to instruct the jury on the defense of

entrapment.      Based on defendant's evidence that an undercover

officer tricked defendant into believing that the officer was

romantically     interested      in   defendant     in     order    to     persuade

defendant   to   obtain    cocaine    for    him,   that    defendant       had   no

predisposition    to    commit    a   drug   offense     such      as    delivering
                                             -2-
cocaine, and that the criminal design originated solely with the

officer,     we    hold      that   the    trial       court    erred       in      failing   to

instruct the jury on the defense of entrapment.

       The   trial      court,      however,       indicated         that      it    was     also

denying the request for an instruction as a sanction under N.C.

Gen.    Stat.     §     15A-910(a)        for    failure       to    provide         "specific

information       as    to   the    nature      and    extent       of   the     defense"      as

required by N.C. Gen. Stat. § 15A-905(c)(1)(b) (2013).                                 Because

the trial court made no findings of fact to justify imposition

of such a harsh sanction, and the State has not shown that it

suffered any prejudice from the lack of detail in the notice

filed eight months prior to trial, we hold that the trial court

abused its discretion in precluding the use of the entrapment

defense as a sanction.              Consequently, defendant is entitled to a

new trial.

                                           Facts

       The State's evidence tended to show the following facts.

On 22 June 2011, Officer Thomas Wishon, Officer Daniel Bignall,

and     Detective       Hefner      of     the        Charlotte-Mecklenburg                Police

Department ("CMPD") were working undercover at Chasers, a male

strip    club      in     Charlotte,       North       Carolina,         investigating         a

complaint         of      sexually-oriented             business          and        narcotics

violations.       Defendant was working as a dancer at the club that
                                          -3-
night,     and    there     were   only     a    few     patrons    at    the     club.

Defendant, whose stage name was Thunder, and another dancer with

the    stage     name   Mercury     approached      the    officers       after    they

finished dancing.           Mercury and         defendant gave lap dances to

Officer Bignall and Detective Hefner.

       Officer     Wishon    engaged      in     small     talk    with     defendant

throughout the evening.            Officer Wishon admitted that he tipped

defendant and flirted, maintained eye contact, and joked with

defendant.       Towards the end of the night, Officer Wishon asked

defendant if he had a "hookup" and indicated that he would like

to buy some cocaine.          Defendant stated that he had a "connect."

Officer Wishon asked defendant for his phone number and told

defendant that he was going to a friend's party but would be

back    after    the    party.     Before       leaving,    Officer      Wishon   gave

defendant a goodbye hug.

       Later     that   night,     Officer       Wishon    received       three   text

messages from defendant.            The first stated, "'You have to come

back.    You never got a lap dance.                LOL.:)'"        The second text

stated, "'I can get what you wanted if you need it.                       Let me know

quick.'"       The third text stated, "'My friend needs to know what

to get if your [sic] still wanting that.'"                    Officer Wishon did

not respond to these text messages or return to the nightclub

that night.
                                          -4-
       Officer Wishon did not text defendant until 29 June 2011,

when    he     asked   defendant   if     he    was   able   to    "hook    him   up."

Officer      Wishon    and   defendant    exchanged      several    text     messages

discussing the details of the deal.                   They arranged for Officer

Wishon to go to Chasers the following day to make the purchase.

       The next day, 30 June 2011, Officer Wishon went to Chasers

where     he    and    other   undercover         officers   played        pool   with

defendant until defendant's "source" arrived.                     When defendant's

source, later identified as Paul Peterson, walked in, defendant

said to Officer Wishon:            "Oh.         He's here.        Let me get your

money."        Officer Wishon handed defendant $185.00 and watched

defendant follow Mr. Peterson into the bathroom.                    When defendant

returned, he had a plastic baggy of cocaine tucked into his

underwear on his hip.           He asked Officer Wishon to be "frisky"

with him.       Officer Wishon told defendant that he was making him

uncomfortable, but he, nevertheless, retrieved the plastic baggy

of cocaine from defendant's hip.                 Shortly thereafter, defendant

was arrested.

       After defendant was read his rights, he agreed to talk with

Officer Stephanie White of the CMPD.                    Defendant told Officer

White that he met Mr. Peterson in the bathroom, took the $185.00

given to him by Officer Wishon and exchanged it for the cocaine,

put the cocaine in his underwear and Officer Wishon retrieved
                                           -5-
it.     Defendant also told Officer White that Officer Wishon had

offered him $100.00 to broker the drug deal.                          Officer White

testified that, generally, undercover officers will only offer

someone a cigarette or up to $5.00 at most to broker a drug deal

and that defendant's claim that he was offered $100.00 was a

lie.

       On    11   July   2011,     defendant     was   indicted    for      sale    of   a

controlled substance, possession with intent to sell or deliver

a controlled substance, and delivery of a controlled substance.

On 2 February 2012, defendant filed a notice of an intent to

assert      the    defense    of   entrapment.         The   notice        stated    that

"undercover CMPD Officer Wishon, acting on behalf of Charlotte

Mecklenburg        Police    Department     induced      Brandon      M.    Foster       to

obtain cocaine, a crime not contemplated by Brandon M. Foster."

       At a pretrial hearing on 8 October 2012, the State made a

motion in limine to bar defendant from asserting the defense of

entrapment        on   the   grounds   that      the   notice   did     not    "contain

specific information as to the nature and the extent of this

defense" as required by N.C. Gen. Stat. § 15A-905(c).                         The trial

court       initially    denied     the    State's     motion     and      then     asked

defendant         to   describe     more    specifically        what       constituted

entrapment in this case.             After defendant gave a proffer of the

evidence he intended to present to support the defense, the
                                                -6-
trial court again denied the State's motion.                             The trial began

the following day.

       Defendant testified in his own defense on the second day of

trial.        He testified that on the night of 22 June 2011, he

believed that Officer Wishon was interested in him.                                  Officer

Wishon initiated a conversation with defendant by asking him if

he was single and asking other personal information such as what

he liked to do besides dancing.                       Defendant told Officer Wishon

that he was in school and that he danced to pay the bills.                                He

was    intrigued         by   Officer       Wishon,      noting   that     Officer    Wishon

"never mentioned the fact that I was sitting there in boy shorts

or    that    I     am   half     naked"     and   instead       kept   the   conversation

intellectual and sincere.

       By the end of the night, defendant had given Officer Wishon

his real name and telephone number, information that he normally

did    not    give       guests      at   the   club.       At    one   point,     defendant

commented that he thought Officer Wishon liked Mercury.                              Officer

Wishon responded that he was into defendant and that is why he

wanted       defendant's        number      and    not    Mercury's.          When   Officer

Wishon left, he gave defendant a goodbye hug.

       At     one    point      in    the    night,      after    having      a   one-on-one

conversation with defendant, Officer Wishon asked both defendant

and Mercury about getting "straight," which is street language
                                      -7-
for cocaine.       Defendant asked "[w]hat are you talking about?"

Officer   Wishon    clarified      that    he    was   referring    to    cocaine.

Defendant    stated   that    he   did    not     do   drugs.      However,    both

defendant and Mercury told Officer Wishon that they would ask

around for him.

       Defendant testified that he did ask around, but did not

find anything that night.           He did not speak to Officer Wishon

about drugs again before the officers left.                 Although defendant

texted Officer Wishon later about the lap dances,                        he denied

sending     the   second     and   third        text   messages.         The   last

communication between the two of them that night was Officer

Wishon's response stating that he was not coming back to the

club that night.

       Defendant did not hear from Officer Wishon again until one

week later when he texted defendant, "Are you working tonight?"

By that time, defendant had deleted Officer Wishon's number from

his phone, thinking that Officer Wishon had lost interest in

him.    Defendant's first response, therefore, was to ask who was

texting him.      When defendant found out it was Officer Wishon, he

became excited and giddy.            They texted back and forth a few

times, but when Officer Wishon turned the conversation back to

narcotics, defendant slowed down his responses.                     Referring to

cocaine, Officer Wishon asked defendant if he had ever found
                                        -8-
what Officer Wishon had asked for the night of 22 June 2011.

Defendant told him he had not.                Officer Wishon asked defendant

if he could find him drugs, and defendant told him the same

thing he had told him the first night -- that he could ask

around.

    Defendant told Officer Wishon to contact Eric, a customer

of defendant's.      Defendant began texting between both Officer

Wishon and Eric, relaying the questions of Officer Wishon to

Eric,     and   forwarding     Eric's     responses      to    Officer     Wishon.

Officer    Wishon   told     defendant    he     was   planning      on   going   to

Chasers the following night.           Defendant forwarded Officer Wishon

a text from Eric stating that the drug dealer was supposed to be

at Chasers that night as well.

    On the night of 30 June 2011, defendant was excited to see

Officer Wishon at Chasers and went over to talk to him after he

had finished a set.          It was a busy Friday night, so defendant

was unable to talk as much as he had been able to talk on the

first   night.      Instead,     the     conversations        were   centered     on

Officer Wishon's questions about the dealer and whether he was

there or not -- Officer Wishon would go to the bar and tip

defendant and ask defendant when the drug dealer would arrive.

He tipped defendant $10.00.
                                         -9-
    Eric was at the bar and signaled to defendant when the drug

dealer, Paul Peterson, had arrived.                Defendant recognized the

drug dealer as "Uncle Paul," a man who frequented the bar, but

he did not know him personally.                Defendant told Officer Wishon

that the drug dealer was at the club, and Officer Wishon asked

defendant to get the cocaine for him.               Defendant took the money

from Officer Wishon, followed Mr. Peterson to the bathroom, and

returned with the cocaine.           He put the drugs in his underwear

and asked Officer Wishon to retrieve the drugs because he did

not want to touch the drugs himself.

    When       asked    why   he   got   the    drugs    for   Officer   Wishon,

defendant replied: "I was doing what I could to impress him.                  He

seemed to like me.        I liked him, so I tried to do that for him."

He also explained, "I had a crush.               Having someone continuously

ask you for the same thing makes you feel persuaded to do it."

    Defendant testified that in one of the texts from Officer

Wishon,   he    was    told   he   would   be    given   $100.00   for   setting

everything up.         However, defendant did not state that money was

what motivated him to help Officer Wishon.                 Instead, defendant

explained:

           I mean, I just I liked him. In my life and
           my organization at that profession I was
           doing, I didn't get a lot of chances to meet
           decent people to actually date or who could
           possibly be a possible date.
                                           -10-
                   When I found someone who I was really,
              really interested in and I felt like they
              were interested in me, I took a chance
              basically.

                   I didn't per se want to do it with the
              narcotics or be involved in it. I felt like
              I was pushed more to get it or else the
              interest would have been lost on his part in
              me.

Defendant felt that Officer Wishon took advantage of both his

emotions      and   his    financial       situation.      He   had      told   Officer

Wishon that he lived with his mother and that he was working to

support himself and his mother and pay for school.                       He had never

gotten in trouble before and does not use or sell drugs.

       At the close of all the evidence, the State again argued

that    it   was    not    given     notice   of   the    nature    and    extent   of

defendant's defense of entrapment until trial and asked that it

be given until the following morning to address the issue of

entrapment.           In    response,       defense      counsel      asserted     that

defendant filed his intent to use the entrapment defense on 2

February 2012, 240 days prior to trial.

       The trial court then indicated that "[w]hat the Court is

going to hear with regard to the entrapment defense is whether

or not that defense should go to the jury."                     The court granted

the State's request that it wait to hear the parties' arguments

until   the    following      morning.        Specifically,        the    trial   court

stated,      "In    the    morning    at   9:30,   [the    court    will    hear    the
                                         -11-
parties] about whether the issue of entrapment goes to the jury,

based    on   the    evidence    before       the     Court."        Defense      counsel

responded: "So I may be clear what the State is asking and what

the Court is deciding -- we are not revisiting the issue of the

motion   in    limine.      We   are     objecting.            There    is     sufficient

evidence to present the testimony to submit to a jury for its

consideration."

    The following morning, after hearing the parties' arguments

regarding      the     sufficiency       of     the     evidence        presented      on

entrapment,      the    trial    court    concluded        that        there    was   not

sufficient     evidence    to    instruct       the     jury    on     the     entrapment

defense.      Although the parties had not addressed the adequacy of

the notice, the trial court also added:

                   In addition, the Court having given
              further thought to the motion of State
              raises the issue of notice to the state
              [sic] of the intent to use the defense of
              entrapment,   the   Court  finds   that   the
              defendant failed to comply with the statute;
              that the defendant did not give them
              specifics as to the basis of the defense.

                   So in addition to the Court's rul[ing]
              finding that the defendant failed to present
              sufficient   or    competent   evidence   of
              entrapment, the defendant further failed to
              notify the State in accordance with the
              statute of its intent to raise the defense
              of entrapment.    The Court will not submit
              the issue of entrapment to the jury.
                                        -12-
    The jury found defendant guilty of delivery of cocaine and

not guilty of the other two offenses.            The trial court sentenced

defendant to a presumptive-range term of five to six months

imprisonment.       The    court    suspended    defendant's       sentence      and

placed   defendant        on    supervised     probation     for    12    months.

Defendant timely appealed to this Court.

                                   Discussion

    Defendant   first          argues   that   the   trial   court       erred    in

concluding   that    the       evidence    was   insufficient       to    warrant

submission of the defense of entrapment to the jury.

               "Entrapment is the inducement of a
          person to commit a criminal offense not
          contemplated by that person, for the mere
          purpose of instituting a criminal action
          against him.    To establish the defense of
          entrapment, it must be shown 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 design originated in the
          minds of those officials, rather than with
          the defendant. The defense is not available
          to a defendant who was predisposed to commit
          the crime charged absent the inducement of
          law enforcement officials.    The defendant
          has the burden of proving entrapment to the
          satisfaction of the jury."

State v. Thompson, 141 N.C. App. 698, 706, 543 S.E.2d 160, 165

(2001) (quoting State v. Davis, 126 N.C. App. 415, 417-18, 485

S.E.2d 329, 331 (1997)).
                                               -13-
       "The       fact     that       governmental          officials        merely     afford

opportunities or facilities for the commission of the offense

is, standing alone, not enough to give rise to the defense of

entrapment."        State v. Hageman, 307 N.C. 1, 30, 296 S.E.2d 433,

449 (1982).         Instead, the defendant must present evidence that

the law enforcement officers or their agents engaged in "acts of

persuasion, trickery, or fraud[.]"                          State v. Martin, 77 N.C.

App.   61,    67,       334    S.E.2d       459,    462     (1985).      "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).

       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

presented at trial established that the defendant was entrapped

as a matter of law.                 There, the undisputed evidence showed that

an     undercover         officer,           based     on      false     representations,

befriended        the    teenage          defendant   and     became    a     "big    brother"

figure to him.             Id. at 32, 215 S.E.2d at 597.                        The officer

repeatedly        asked       the    defendant       where    he    could     find    and   buy

drugs, persuaded the defendant to make more than one drug buy

for him, and supplied the money for the purchases.                               Id. at 21-

22, 215 S.E.2d at 591.                On two occasions prior to his arrest for
                                               -14-
possession of a controlled substance, the defendant purchased

drugs that turned out to be counterfeit because the defendant

did not know the difference.                   Id. at 22, 215 S.E.2d at 591.                The

Supreme      Court       held     that      this    evidence         demonstrated    that   the

criminal design originated with the officer, and there was not

any evidence indicating that the defendant was predisposed to

engage in possession or distribution of drugs.                                 Id. at 32-33,

215 S.E.2d at 597-98.

       Even where the evidence does not establish entrapment as a

matter of law, "[i]f 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).           In   Branham,    the   defendant

testified that two days before he was arrested, an informant,

who    was    the     older       brother      of    a    girl      defendant    knew,   asked

defendant if he "'could get him a kilo of Cocaine,'" and the

defendant responded that he had no idea where to get it.                                    Id.,

569 S.E.2d at 30.                The next day, the informant repeatedly asked

the defendant for LSD, and persisted until the defendant agreed

to    locate       the     LSD    requested.             Id.       Although    the   defendant

offered       to    drive        the    informant        to    the    seller    so   that   the

informant          could     make       the    purchase            himself,    the   defendant

ultimately         agreed        to    make   the     purchase        after    the   informant
                                         -15-
offered the defendant an additional $100.00.                  Id. at 100-01, 569

S.E.2d at 30.

       This Court held that the trial court properly instructed

the jury on the issue of entrapment since "there was evidence

that [an informant] and the officers initiated the offense, but

also    evidence    from    which     the     jury   could   have    inferred     that

defendant was predisposed to sell LSD."                 Id. at 100, 569 S.E.2d

at     30.       Specifically,      "[d]efendant's       testimony       that     [the

informant] repeatedly pushed defendant to obtain drugs for him,

that he attempted to get [the informant] to make the purchase

himself, and that he had never before been involved in any drug

sales of this quantity" was sufficient to raise an issue of fact

as   to      inducement    and   lack    of    predisposition       to   commit    the

offenses, despite the State's evidence to the contrary.                         Id. at

101-02, 569 S.E.2d at 30.

       In     Jamerson,    the   defendant       presented    evidence     that     an

undercover      officer    and   an     informant     came   to   the    defendant's

apartment and asked the defendant to sell them some drugs, but

the defendant said that he did not have any.                      64 N.C. App. at

302, 307 S.E.2d at 436.          When the officer and informant returned

a few hours later and the defendant still did not have any drugs

and had not made any attempt to locate any drugs, the officer

repeatedly told the defendant that he desperately needed drugs
                                       -16-
because he was an addict.          Id., 307 S.E.2d at 437.                 After the

informant located a person who would sell drugs and offered the

defendant $15.00 to make the purchase, the informant drove the

defendant to the location and the defendant made the purchase

with money provided by the officer.               Id.    This Court held that

this evidence was sufficient to require submission of a jury

instruction on entrapment.        Id. at 303, 307 S.E.2d at 437.

    We believe that the facts of this case are analogous to

Stanley,    Branham,    and    Jamerson.          Defendant's       evidence     and

Officer    Wishon's    own    testimony       tended    to   show   that     Officer

Wishon falsely led defendant to believe that he was romantically

interested in defendant by asking him personal questions about

defendant's life, maintaining eye contact, flirting, joking with

him throughout the evening, asking for defendant's phone number,

saying that he was "into" defendant rather than another dancer,

and giving defendant a hug goodbye the first night they met.

    The undisputed evidence shows that Officer Wishon, who was

investigating narcotics violations, initiated the conversation

regarding     drugs    by    asking    defendant        where   he     could     get

"straight," a street term for cocaine that defendant did not

understand.       After      Officer    Wishon     clarified        that    he   was

referring to cocaine, defendant told Officer Wishon that he did

not do drugs but that he would ask around.                   Although the State
                                     -17-
presented evidence that defendant, later that evening, renewed

the conversation about his obtaining cocaine for Officer Wishon

in two text messages defendant sent, defendant admitted sending

only a flirtatious text message that did not mention drugs and

denied sending the other two text messages.               For purposes of the

entrapment issue, we must assume that defendant's testimony is

true.

    Consequently,     viewing       the   evidence    in    the     light     most

favorable to defendant, there was no further discussion of drugs

after defendant said simply that he would ask around until, a

week later, Officer Wishon texted defendant about whether he was

working that night.          In the meantime, defendant had deleted

Officer Wishon's phone number from his phone, an act a jury

could find was consistent with someone focused on a romantic

interest rather than a potential drug client.               The initial texts

a week later were not about drugs, but Officer Wishon then again

asked   defendant   about     obtaining     drugs    for    him.      Defendant

ultimately did not himself act as an intermediary with the drug

dealer,   but   identified    one   of    his   clients    who     could    assist

Officer Wishon with connecting with the drug dealer -- evidence

which suggests that defendant did not have a predisposition to

engage in drug dealing.
                                    -18-
    In addition, defendant testified that he only agreed to

help Officer Wishon obtain the drugs because he was romantically

interested    in   Officer    Wishon,   and,    after    being    continuously

asked about the drugs, "felt like [he] was pushed more to get it

or else the interest would have been lost on [Officer Wishon's]

part in [defendant]."        The record also contains no evidence that

defendant had previously used drugs, engaged in drug dealing, or

was aware of common street lingo for drugs -- indeed, the record

contains no evidence of any other behavior on defendant's part

that was suggestive of a predisposition to help supply someone

with drugs.

    In sum, viewed in a light most favorable to defendant,

Officer Wishon's flirtatious behavior towards defendant combined

with his persistent requests for cocaine persuaded defendant to

obtain the cocaine for Officer Wishon.                  Further, defendant's

evidence would permit the jury to find that the idea for the

crime   (delivery   of   cocaine)   originated     with     and   was   pursued

solely by Officer Wishon, with no indication that defendant had

any predisposition to participate in drug transactions.

    Thus, as in Stanley, Branham, and Jamerson, the undercover

officer   initiated   the    conversation      about    drugs,    persisted   in

seeking drugs, and provided defendant with the money for the

exchange.     Moreover, Officer Wishon's acts of inducement, like
                                       -19-
those of the undercover officer in Stanley, involved emotional

manipulation including creating a false relationship and then

taking   advantage     of    the   defendant's      desire   to    maintain   that

relationship.      Finally, as in Stanley, there was no evidence of

predisposition.

    The State, nevertheless, argues that Officer Wishon merely

afforded    defendant        the   opportunity      to    commit   the     offense,

arguing that the facts of this case are analogous to Thompson,

Martin, State v. Rowe, 33 N.C. App. 611, 235 S.E.2d 873 (1977),

State v. Booker, 33 N.C. App. 223, 234 S.E.2d 417 (1977), and

State v. Stanback, 19 N.C. App. 375, 198 S.E.2d 759 (1973),

decisions holding that the evidence was insufficient to show

that the defendant was entrapped.             We disagree.

    In     each   of   the    cases   cited    by   the   State,    the   evidence

established that the undercover agent had reason to believe the

defendant was a drug dealer,            or     the defendant       was    otherwise

specifically targeted by the undercover agent because the agent

had reason to believe the defendant could obtain drugs.                        See

Martin, 77 N.C. App. at 63, 334 S.E.2d at 460 (evidence was

presented that defendant told undercover agent that "he had been

dealing drugs for sixteen years and had a reputation in the

community as a 'fair dealer who gave a good product at a fair

price'"); Thompson, 141 N.C. App. at 699-700, 543 S.E.2d at 162
                                              -20-
(sheriff's        office   received           information      from        informant       that

defendant was selling drugs from his apartment and defendant was

a heroin addict with extensive criminal history); Booker, 33

N.C. App. at 223, 234 S.E.2d at 417 (undercover officer went to

defendant's house and asked to buy drugs, and defendant stated

that he knew where he could get some marijuana and was able to

retrieve drugs in 20 minutes); Rowe, 33 N.C. App. at 614, 235

S.E.2d    at      875   (evidence        established         that     undercover          agent

"worked   herself       into    the     drug     traffic     society        and    purchased

drugs from the defendant"); Stanback, 19 N.C. App. at 376, 198

S.E.2d at 760 (undercover agent went to defendant's apartment to

purchase drugs that defendant had promised to sell                                  to agent

previous day, and defendant told agent after transaction that

"'[a]nytime you need anything, an ounce or a lid or a pound, I

can get it for you'").

    While the State argues that this case is similar to the

decisions      upon     which     it     relies      because        defendant       did    not

hesitate before telling Officer Wishon that he would ask around

about drugs and did so in a short period of time, in the cases

the State cites, any evidence tending to show that the defendant

needed little urging before agreeing to the undercover agent's

request     was     consistent         with    the     totality       of     the    evidence

suggesting     that     the     defendant       was,    in   fact,     a     drug    dealer.
                                      -21-
When, in this case, the evidence is viewed in the light most

favorable to defendant, there is no suggestion that defendant

was a drug dealer, had any criminal history, or was in any way

predisposed     to    commit    the   offense      of     delivery      of     cocaine

independent of government influence.

       Given the lack of evidence regarding defendant's criminal

predisposition,      any   evidence       that    defendant       required      little

urging     before    agreeing    to   ask     around      for   drugs        could    be

attributed by a jury to defendant's romantic interest in Officer

Wishon and a desire to impress him.               Thus, the evidence that the

State points to as showing that defendant was predisposed to

commit the crime is consistent with defendant's theory of the

entrapment defense and merely creates an issue of fact for the

jury to decide.         We therefore hold that defendant                     presented

sufficient evidence of the essential elements of entrapment, and

the trial court erred in refusing to instruct the jury based on

a lack of evidence.

       The question remains whether the trial court's denial of

defendant's request for an entrapment instruction may be upheld

as a sanction for defendant's failure to provide adequate notice

of his defense.        N.C. Gen. Stat. § 15A-905(c)(1)(b) specifies

that   a   defendant   must     provide     the   State    with    notice      of    its

intent to offer at trial the defense of entrapment and that the
                                   -22-
notice must "contain specific information as to the nature and

extent of the defense."         The trial court, in this case, found

generally    that   defendant    violated   N.C.      Gen.     Stat.   §    15A-

905(c)(1)(b)      because   "defendant    did   not     give    [the       State]

specifics as to the basis of the defense."            The trial court then

used this violation as an additional basis for its refusal to

submit the issue of entrapment to the jury.

    If a trial court determines that a defendant has violated

N.C. Gen. Stat. § 15A-905(c)(1)(b), it may impose any of the

following sanctions on the defendant:

            (1)   Order the party to permit the discovery
                  or inspection, or

            (2)   Grant a continuance or recess, or

            (3)   Prohibit the party from          introducing
                  evidence not disclosed, or

            (3a) Declare a mistrial, or

            (3b) Dismiss the charge,        with   or    without
                 prejudice, or

            (4)   Enter other appropriate orders.

N.C. Gen. Stat. § 15A-910(a) (2013).

    However, "[p]rior to finding any sanctions appropriate, the

court shall consider both the materiality of the subject matter

and the totality of the circumstances surrounding an alleged

failure to comply with this Article or an order issued pursuant

to this Article."      N.C. Gen. Stat. § 15A-910(b).           "If the court
                                        -23-
imposes any sanction, it must make specific findings justifying

the imposed sanction."        N.C. Gen. Stat. § 15A-910(d).

       "Whether   a   party    has     complied    with   discovery      and     what

sanctions, if any, should be imposed are questions addressed to

the sound discretion of the trial court."                 State v. Tucker, 329

N.C.    709,   716,   407     S.E.2d       805,   810   (1991).        "'Abuse     of

discretion     results      where    the     court's    ruling    is    manifestly

unsupported by reason or is so arbitrary that it could not have

been the result of a reasoned decision.'"                 State v. Elliot, 360

N.C. 400, 419, 628 S.E.2d 735, 748 (2006) (quoting State v.

Hennis, 323 N.C. 279, 285, 372 S.E.2d 523, 527 (1988)).

       As explained by our Supreme Court, "the rules of discovery

contained in the Criminal Procedure Act were enacted by the

General Assembly to ensure, insofar as possible, that defendants

receive a fair trial and not be taken by surprise.                       They were

not enacted to serve as mandatory rules of exclusion for trivial

defects in the State's mode of compliance."                  State v. Thomas,

291 N.C. 687, 692, 231 S.E.2d 585, 588 (1977).                         Despite the

General Assembly's emphasis on protecting defendants from the

State's noncompliance, "[s]uch legislative intent . . . does not

give defendants carte blanche to violate discovery orders, but

rather, defendants and defense counsel both must act in good

faith, just as is required of their counterparts representing
                                         -24-
the State."        State v. Gillespie, 180 N.C. App. 514, 525, 638

S.E.2d 481, 489 (2006), modified and affirmed, 362 N.C. 150, 655

S.E.2d    355    (2008).        Thus,   the   rules   of    discovery     have    been

applied with equal force to both defendants and the State to

ensure a fair trial and avoid unfair surprise for both parties.

See, e.g., State v. McMahon, 67 N.C. App. 181, 183, 312 S.E.2d

526, 527 (1984) (applying common law notions of fairness and

holding    that    discovery      rule    applicable       to   State    is   equally

applicable to defendant).

       In State v. Cooper, ___ N.C. App. ___, ___, 747 S.E.2d 398,

414 (2013), appeal dismissed and disc. review denied, ___ N.C.

___,   753      S.E.2d   783    (2014),   this    Court     reversed      the    trial

court's imposition of sanctions against a defendant when the

sanction     imposed     "was    disproportionate      to       the   purposes    this

state's discovery rules were intended to serve."                      In Cooper, the

trial court had excluded the testimony of the defendant's second

expert witness as a sanction for the defendant's failure to

disclose the witness to the State as required by N.C. Gen. Stat.

§ 15A-905 (2011).        ___ N.C. App. at ___, 747 S.E.2d at 403.                  The

defendant had only proffered the second expert witness after the

State successfully moved at trial to exclude the testimony of

defendant's first expert witness on the basis that the witness

was not qualified to testify as an expert.                        Id. at ___, 747
                                            -25-
S.E.2d    at    413.           Because     the    State       had      not       indicated     any

intention      to    challenge       the    defendant's           first      expert      witness

prior    to    trial,      the     defendant      did       not   anticipate           needing   a

second expert, and, as a result, did not have the second expert

on its witness list.              Id. at ___, 747 S.E.2d at 413.

      In addressing whether the trial court abused its discretion

in sanctioning the defendant by excluding the testimony of the

expert    witness,        the     Cooper    Court         first     recognized          that   the

imposition          of     sanctions       on         a     criminal         defendant         has

constitutional            implications           because          of         a        defendant's

constitutional           right    under    the    Sixth       Amendment          to    present   a

defense.       Id. at ___, 747 S.E.2d at 414.                     The Court then pointed

to the factors set out by the United States Supreme Court in

Taylor v. Illinois, 484 U.S. 400, 98 L. Ed. 2d. 798, 108 S. Ct.

646   (1988),       to    be     considered      in       determining        the      appropriate

sanction,      consistent         with    that    constitutional              right,      when   a

defendant has failed to disclose a witness:

               "Although the Taylor Court declined to cast
               a mechanical standard to govern all possible
               cases, it established that, as a general
               matter, the trial judge (in deciding which
               sanction   to   impose)   must   weigh   the
               defendant's right to compulsory process
               against the countervailing public interests:
               (1) the integrity of the adversary process,
               (2) the interest in the fair and efficient
               administration of justice, and (3) the
               potential prejudice to the truth-determining
               function of the trial process.     The judge
                                 -26-
         should also factor into the mix the nature
         of the explanation given for the party's
         failure seasonably to abide by the discovery
         request, the willfulness vel non of the
         violation,   the   relative   simplicity  of
         compliance, and whether or not some unfair
         tactical advantage has been sought."

___ N.C. App. at ___, 747 S.E.2d at 415 (quoting Chappee v.

Vose, 843 F.2d 25, 29 (1st Cir. 1988)).

    Applying the Taylor factors to the facts in Cooper, the

Court reasoned:

              Defendant,   in   failing   to    provide
         earlier notice to the State, was clearly not
         seeking any tactical advantage.     The trial
         court made no finding of willful misconduct,
         and the record divulges none.       Defendant
         only sought out another expert . . . after
         the State was successful in moving to limit
         [the first expert's] testimony in the middle
         of the trial. At that point, Defendant had
         no way to present vital expert testimony and
         comply with N.C.G.S. § 15A–905(c)(2).

              In   light of the lack of willful
         misconduct on the part of Defendant, the
         rational reason presented for failing to
         inform the State before trial that Defendant
         would be calling [the second expert], the
         role of the State in having this situation
         arise after the trial had commenced, the
         fundamental nature of the rights involved,
         the importance to the defense of the
         testimony    excluded,   and   the   minimal
         prejudice to the State had the trial court
         imposed a lesser sanction       -- such as
         continuance or recess, we hold that imposing
         the harsh sanction of excluding [the second
         expert] from testifying constituted an abuse
         of discretion.

Id. at ___, 747 S.E.2d at 415.
                                        -27-
    In State v. Dorman, ___ N.C. App. ___, 737 S.E.2d 452,

appeal dismissed and disc. review denied, 366 N.C.                           594, 743

S.E.2d 205 (2013), this Court addressed, in similar fashion, the

appropriateness of the extreme sanction of dismissal when the

State     has     committed     a     discovery     violation,          even   though

sanctioning the State has no constitutional implications.                            The

Court   held     that    "'[g]iven     that     dismissal       of   charges   is     an

"extreme sanction" which should not be routinely imposed,'" such

dismissals       "'should   also      contain     findings      which    detail      the

perceived prejudice to the defendant which justifies the extreme

sanction imposed.'"           Id. at ___, 737 S.E.2d at 470 (quoting

State v. Allen, ___ N.C. App. ___, ___, 731 S.E.2d 510, 527-28,

disc. review denied, 366 N.C. 415, 737 S.E.2d 377 (2012), cert.

denied,    ___    U.S.   ___,   185    L.   Ed.    2d    876,    133    S.   Ct.    2009

(2013)).     After noting that the defendant had possession of the

evidence the State initially failed to disclose, the Court held

that "[a]bsent a finding explaining the specific and continuing

prejudice       Defendant     will    suffer,      the    trial      court's       order

dismissing the charge on this basis is in error."                        Id. at ___,

737 S.E.2d at 470.

    We see no reason why the rules set out in Cooper and Dorman

should not apply with equal force to a trial court's refusal to

instruct the jury on an affirmative defense presented by the
                                             -28-
defendant.          Such a sanction in this case has the same effect on

the defendant as the "harsh sanction" in Cooper that interfered

with     the    defendant's          defense     --   even    though    defendant        was

allowed        to     present       entrapment    evidence,     the     jury     was     not

instructed in a way that permitted it to consider that evidence

as   a    basis       for    acquitting      defendant.        Given    such     a     harsh

sanction, the trial court was required, under Dorman, to justify

the sanction with findings regarding the prejudice to the State

resulting from defendant's discovery violation.

         Requiring the trial court to consider the prejudice to the

State resulting from the defendant's discovery violation before

imposing        the       extreme    sanction    of   precluding       an    affirmative

defense is also consistent with this court's holding in State v.

McDonald, 191 N.C. App. 782, 786-87, 663 S.E.2d 462, 465 (2008).

In McDonald, the defendant failed to provide the State with

notice     of       the    defenses     it   intended    to    assert       at   trial    as

required by N.C. Gen. Stat. § 15A-905, despite the State having

made several motions requesting notice of defenses.                          Id. at 785,

663 S.E.2d at 464-65.                 The trial court ultimately allowed the

defendant to assert the defenses of duress and accident                                  but

precluded the defendant from asserting the defenses of voluntary

intoxication and diminished capacity.                   Id., 663 S.E.2d at 465.
                                           -29-
       This   Court    noted        that   the    State      "had    anticipated            the

accident defense" and that "unlike the diminished capacity and

voluntary intoxication defenses, the defense of duress would not

require    substantial        preparation         on   the    part       of    the    State,

including the engagement of experts."                  Id. at 786, 663 S.E.2d at

465.      Because the trial court "precluded only those defenses

that would have prejudiced the State" and allowed defendant to

proceed with other defenses -- either because the State could

have anticipated the defense, or because the State could quickly

and adequately prepare despite the late notice -- this Court

held   that   the     trial    court's       sanction        was    not       an    abuse    of

discretion.        Id. at 787, 663 S.E.2d at 465.

       In line with this Court's analysis in Cooper, Dorman, and

McDonald,     we    hold     that    in    considering       the     totality         of    the

circumstances        prior    to     imposing      sanctions        on    a        defendant,

relevant factors for the trial court to consider include without

limitation: (1) the defendant's explanation for the discovery

violation including whether the discovery violation constituted

willful misconduct on the part of the defendant or whether the

defendant sought to gain a tactical advantage by committing the

discovery violation, (2) the State's role, if any, in bringing

about the violation, (3) the prejudice to the State resulting

from the defendant's discovery violation, (4) the prejudice to
                                           -30-
the defendant resulting from the sanction, including whether the

sanction    could       interfere    with    any        fundamental     rights      of    the

defendant, and (5) the possibility of imposing a less severe

sanction on the defendant.

      In this case, the trial court found that defendant violated

N.C. Gen. Stat. § 15A-905(c)(1)(b) because "defendant did not

give [the State] specifics as to the basis of the defense."

Assuming, without deciding, that defendant's notice constituted

a   discovery     violation,        we    must     determine,      in     light     of    the

factors     listed       above,    whether        the    trial     court      abused      its

discretion in refusing to instruct the jury on the defense of

entrapment.

      We note first that the procedure by which the trial court

concluded       that     defendant       failed    to     comply    with      the    notice

requirements suggests that it was not the result of a reasoned

decision.         The     trial    court     originally          denied    the      State's

pretrial motion for sanctions.                    At the end of the trial, the

trial court indicated that it would hear oral argument regarding

the   submission        of   the    entrapment       defense       to   the    jury,      but

specifically limited the party's arguments to the sufficiency of

the   evidence      --    the     court    confirmed       that    it     would     not    be

revisiting the court's decision to deny the State's pretrial

motion    for    sanctions.          Nevertheless,         after    ruling       that     the
                                  -31-
evidence presented by defendant was insufficient to support an

instruction on the defense of entrapment, the trial court, sua

sponte, without giving defendant any notice or an opportunity to

be heard, decided to reverse its denial of the State's pretrial

motion for sanctions and preclude the              use of the     entrapment

defense as a sanction.

      In doing so, the trial court made no findings "justifying

the imposed sanction" as required by N.C. Gen. Stat. § 15A-

910(d) and made no finding that the State had been prejudiced by

the lack of specifics in defendant's notice.                The court simply

found that defendant had failed to fully comply with the notice

statute.      The procedure followed by the trial court, the failure

to find prejudice, and the lack of findings are inconsistent

with the court's ruling being a reasoned decision to further the

purposes of the rules of discovery.           Rather, the record suggests

that the trial court imposed sanctions simply as an afterthought

to bolster its decision not to instruct the jury on entrapment.

      In addition, our review of the record reveals no basis for

imposing the extreme sanction of precluding a defense.                There is

no indication that defendant, in failing to give more specifics

in his notice, acted in bad faith or to gain an unfair advantage

at   trial.     Rather,   defendant   filed    a   timely    notice   well   in

advance of trial, disclosing his intent to assert the defense of
                                         -32-
entrapment and including the identity of the specific officer

whom defendant contended induced him to commit the crime.                        The

State made no showing that the omission of further details was

in bad faith or a tactical move.

       Indeed, the record indicates that any lack of preparation

to meet the defense was contributed to by the State's failing to

take timely action.           Defendant filed his notice on 2 February

2012 -- more than eight months prior to trial.                          During that

time, the State had general notice of defendant's intent to use

the defense and specific notice that Officer Wishon's actions

resulted in the alleged entrapment.               Officer Wishon, the State's

lead     witness,      was    readily       accessible     to     the   State    for

questioning regarding his conduct in interacting with defendant.

In     the    event    that   the    State      desired    additional     specifics

regarding defendant's entrapment defense, the State could have

requested more information from defendant or moved for an order

requiring      defendant      to    provide     adequate     discovery.         Given

defense counsel's apparent belief that he had complied with N.C.

Gen. Stat. § 15A-905(c)(1)(b), the State's failure to request

more    information      or   to    alert    defendant     that   its   notice    was

inadequate during the eight months prior to trial, similar to

the State's failure in Cooper to notify the defendant prior to

trial    of    its    intention     to   challenge   the    defendant's     primary
                                            -33-
expert, deprived defendant of an opportunity to comply with the

rules of discovery in a timely fashion and avoid being subject

to sanctions.

     Moreover, the refusal to instruct the jury concerning an

affirmative     defense      is        a    harsh      sanction       that    implicates

defendant's fundamental right to present a defense at trial.                               In

contrast, the prejudice to the State resulting from defendant's

violation was minimal.             During the pretrial motions hearing,

defendant gave a detailed proffer of the evidence he intended to

present to establish entrapment.                    The State did not call its

first witness until the following day, and defendant did not

testify until the second day of trial.                    Because the evidence on

entrapment was testimonial in nature, was limited to the acts of

Officer Wishon, and "would not require substantial preparation

on   the   part       of   the    State,        including       the     engagement         of

experts[,]"     McDonald,        191       at   786,   663     S.E.2d    at    465,    the

additional days to prepare after receiving notice of the nature

and extent of defendant's entrapment defense should have been

sufficient to remedy any prejudice to the State.                         In any event,

the State would not have been prejudiced had the trial court

imposed    a   less    severe     sanction         such   as   a   continuance        or    a

recess.
                                                   -34-
       After      considering           the    totality         of    the    circumstances,        we

hold that the trial court's refusal to instruct the jury on the

entrapment defense was not a proper sanction for any failure by

defendant to provide sufficiently specific notice of his intent

to assert the defense of entrapment.                             The trial court's ruling,

therefore, constituted an abuse of discretion.                                   See Dorman, ___

N.C.   App.       at   ___,       737    S.E.2d       at       470   (holding     trial       court's

pretrial order suppressing certain witnesses' testimony from use

in    future       proceedings          based        on    State's         initial     failure     to

disclose        various       documented           conversations           was   in    error     when

defendant was in possession of the relevant information well

before trial, and trial court failed to detail specific and

continuing prejudice defendant suffered as a result of initial

nondisclosure           and       failed        to        explain      how       suppression       of

witnesses' testimony remedied non-disclosure).

                                              Conclusion

       We   hold       that    defendant           presented         sufficient        evidence    to

warrant         submission        of    the        entrapment        defense      to    the     jury.

Further, the trial court abused its discretion when precluding

the    entrapment        defense         as    a     sanction        for    defendant's        having

served      a    notice      of    his    intent          to    rely   upon      the    entrapment

defense         that   was    not       sufficiently            specific.         Defendant       is,

therefore, entitled to a new trial.
                         -35-


New trial.

Judges STEPHENS and ERVIN concur.
