State v. Ott

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.
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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
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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
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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.
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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,
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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
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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,
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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
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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
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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
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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,
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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
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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.
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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
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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.