49 N.C. App. 684 | N.C. Ct. App. | 1980
Lead Opinion
Defendant’s sole assignment of error is the trial court’s refusal to instruct the jury on the defense of entrapment. We hold that the trial court was correct in refusing to so instruct the jury because the evidence presented at trial was insufficient to raise the defense of entrapment.
“Entrapment is ‘the inducement of one to commit a crime not contemplated by him, for the mere purpose of instituting a criminal prosecution against him.’ (Citations omitted.)” State v. Stanley, 288 N.C. 19, 27, 215 S.E. 2d 589, 594 (1975).
Whether the defendant was entitled to have the defense of entrapment submitted to the jury is to be determined by the evidence. Before a Trial Court can submit such a defense to the jury there must be some credible evidence tending to support the defendant’s contention that he was*686 a victim of entrapment, as that term is known to the law. (Citations omitted.)
State v. Burnett, 242 N.C. 164, 173, 87 S.E. 2d 191, 197, 52 A.L.R. 2d 1181, 1190 (1955).
A majority of jurisdictions hold that entrapment is not available as a defense when the accused denies the essential elements of the offense. See Annot., 61 A.L.R. 2d 677 (1958). The rationale of the cases so holding is that the law will not countenance the inconsistency involved in combining a claim that defendant did not commit the offense and a claim that he was entrapped into the commission of the very offense which he denied committing. In the case sub judice, the defendant denied possessing the LSD, intending to sell the LSD and selling the LSD. The question of entrapment, therefore, does not arise from the defendant’s evidence in the case at bar. See State v. Swaney, 277 N.C. 602, 178 S.E. 2d 399, appeal dismissed, 402 U.S. 1006, 29 L. Ed. 2d 428, 91 S. Ct. 2199 (1971); State v. Boles, 246 N.C. 83, 97 S.E. 2d 476 (1957).
Although the defendant has the burden of proving his defense of entrapment to the satisfaction of the jury, the question of entrapment may be raised by the State’s evidence. State v. Braun, 31 N.C. App. 101, 228 S.E. 2d 466, appeal dismissed, 291 N.C. 449, 230 S.E. 2d 766 (1976). The question of entrapment does not arise from the State’s evidence in the case at bar. Our Supreme Court has stated:
The defense of entrapment consists of two elements: (1) acts of persuasion, trickery or fraud carried out by law enforcement officers or their agents to induce a defendant to commit a crime, (2) when the criminal design originated in the minds of the government officials, rather than with the innocent defendant, such that the crime is the product of the creative activity of the law enforcement authorities. (Citations omitted.) In the absence of evidence tending to show both inducement by govenment agents and that the intention to commit the crime originated not in the mind of the defendant, but with the law enforcement officers, the question of entrapment has not been sufficiently raised to permit its submission to the jury. (Citations omitted.)
State v. Walker, 295 N.C. 510, 513, 246 S.E. 2d 748, 749-50 (1978).
In our opinion defendant received a fair trial, free from prejudicial error.
No error.
Dissenting Opinion
dissenting.
I believe the case subjudice must be distinguished on the facts from State v. Boles, 246 N.C. 83, 97 S.E. 2d 476 (1957) and State v. Swaney, 277 N.C. 602, 178 S.E. 2d 399, appeal dismissed, 402 U.S. 1006, 91 S.Ct. 2199, 29 L. Ed. 2d 428 (1971), relied on by the majority. In Boles, defendant’s evidence was to the effect that she was not present and did not participate in the sale (of intoxicating liquor); and in Swaney, defendant’s evidence was to the effect that he knew nothing about the robbery and did not participate. Here, defendant does not contest his presence while the unlawful transactions were accomplished, but argues that his presence at the scene of the crime — and hence his exposure to a finding of involvement — was due to entrapment. I see no fundamental inconsistency in this evidence such as to deny defendant the right to have the issue of entrapment submitted to the jury.
In my opinion, defendant is entitled to a new trial.