An unpublished opinion of the North Carolina Court of Appeals does not constitute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
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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
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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.
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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.”).
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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).
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