265 N.C. App. 526
N.C. Ct. App.2019Background
- Undercover Lincolnton PD detective posted a Craigslist "Boy Needs a Man" ad as a 15‑year‑old "Kelly." Defendant (David Keller) replied and exchanged texts proposing to take a younger male into his home and offering sex/payments.
- Detective disclosed age information during the exchange; Defendant asserted he believed "Kelly" was older (testified he thought 17) and repeatedly said he did not want to have sex until the youth was "old enough."
- Texts included Defendant agreeing to meet and, after an exchange where "Kelly" pressed for sex, Defendant responded "Yes" to requested oral/anal acts; Defendant arrived at the meeting location and was arrested.
- Defendant was indicted and convicted for solicitation of a minor by computer/electronic device and appearing at a meeting to commit an unlawful sex act; sentenced to 10–20 months and sex‑offender registration.
- On appeal Defendant argued the trial court erred by refusing to instruct the jury on entrapment; majority affirmed (no error), Judge Inman dissented, concluding an entrapment instruction was required and the error was prejudicial.
Issues
| Issue | State's Argument | Keller's Argument | Held |
|---|---|---|---|
| Whether evidence required an entrapment jury instruction | No — Keller was predisposed: he initiated contact, sought a "boy," continued after age disclosure, and agreed to sex; undercover merely provided opportunity | Yes — evidence, viewed in Keller's favor, showed he lacked prior criminal intent, expressed refusal to have sex with a minor, and was induced by the undercover officer's persistent sexual urging | Majority: No entrapment instruction required; Keller predisposed. Dissent: Instruction required and error was prejudicial |
| Whether prior conduct/legal history establishes predisposition | Predisposition may be inferred from prior online sexual communications and willingness to meet younger partners | Keller denied prior solicitation of minors and testified his care relationships were nonsexual; any prior contact with a 16‑year‑old was decades earlier | Majority: prior Craigslist conduct and statements show predisposition. Dissent: evidence does not conclusively show predisposition when viewed favorably to Keller |
| Whether a defendant who denies criminal intent can assert entrapment | State: entrapment inconsistent with denial of intent to commit offense | Keller: admitted committing the acts (texts, travel) but denied the requisite criminal intent; entrapment addresses origin of intent | Court references Neville/Sanders: entrapment not inconsistent when defendant admits acts but contests intent; majority did not base ruling on this technical bar |
| Prejudice from refusal to instruct on entrapment | No reversible error—jury properly instructed on elements | Yes — jury questions about intent and confusion during deliberations show a reasonable possibility of a different outcome if instructed on entrapment | Dissent would vacate and remand for new trial on prejudice ground; majority found no error and affirmed conviction |
Key Cases Cited
- State v. Ott, 236 N.C. App. 648 (discusses de novo review and entrapment instruction standard)
- State v. Morse, 194 N.C. App. 685 (refused entrapment instruction where defendant showed prior sexually explicit online conduct and initiative)
- State v. Hageman, 307 N.C. 1 (two‑part entrapment test: government inducement and origin of intent/predisposition)
- State v. Burnette, 242 N.C. 164 (credible evidence required to submit entrapment defense)
- State v. Salame, 24 N.C. App. 1 (distinguishes offering opportunity/deceit from implanting criminal design)
- State v. Neville, 302 N.C. 623 (entrapment unavailable where defendant denies committing the act; distinguishes denials of act from denials of intent)
- State v. Davis, 126 N.C. App. 415 (entrapment as an affirmative defense; burden on defendant)
- State v. Luster, 306 N.C. 566 (defendant bears burden of proving entrapment)