State v. Tillman

36 N.C. App. 141 | N.C. Ct. App. | 1978

VAUGHN, Judge.

Defendant brings forward one assignment of error. He contends that the court erred in instructing the jury on the defense of entrapment rather than in charging them on the lawful possession of drugs by one working for a law enforcement agency. We agree. There is no evidence of entrapment in this case. Before a court should instruct a jury concerning the defense of entrapment, there must be some evidence to support the contention that the defendant’s criminal intent was formed by him only after such persuasion or inducement or trickery that except for such persuasion or trickery he would not have committed the crime. State v. Burnette, 242 N.C. 164, 87 S.E. 2d 191, 52 A.L.R. 2d 1181 (1955); see State v. Stanley, 288 N.C. 19, 215 S.E. 2d 589 (1975). In this case defendant alleged and offered evidence to prove that he had no criminal intent at all, not that his criminal intent was formulated at the insistence of some law enforcement official. He attempted to show that his possession was a legitimate part of his work with drug law enforcement.

In addition to showing that an instruction was erroneously given, the defendant must show that the instructions as given materially prejudiced him. Garland v. Penegar, 235 N.C. 517, 70 S.E. 2d 486 (1952). The record shows such prejudice. Defendant had admitted possession of the heroin. He had offered evidence attempting to show that his possession was lawful. An entrapment defense excuses otherwise unlawful possession. Since the challenged charge on entrapment was the only instruction given on lawful possession, the jury could only have understood that unless defendant were entrapped (with no evidence that he was), he could not have been in lawful possession of the drug.

Defendant also asked for an instruction that he should be found not guilty if he “possessed heroin with the intention of making a case against someone, regardless of whether or not he had been advised to do so by the officers.” The requested instruction was clearly incorrect. Defendant was, however, entitled to an instruction that under the provisions of G.S. 90-101(c)(5) he might lawfully possess the heroin if he were acting as an agent of an agency charged with enforcing the drug laws of this State and he were acting within the course and scope of his official duties. There is some evidence, however dubious, that he was an agent of the Drug Enforcement Administration and the Charlotte Police Department. Whether he was such an agent and was acting within the course and scope of his duties at the time of his arrest is a question for the jury to decide upon proper instructions from the court.

New trial.

Judges PARKER and WEBB concur.