State v. Sanders

Citations: 381 S.E.2d 827; 95 N.C. App. 56; 1989 N.C. App. LEXIS 669Docket: 8822SC1170

Court: Court of Appeals of North Carolina; August 15, 1989; North Carolina; State Appellate Court

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On October 27, 1987, undercover SBI agent Walter House, accompanied by informant Clad McNair, entered T.J. Sanders' apartment in Thomasville, North Carolina, where House negotiated and purchased one-eighth ounce of cocaine for $300. The following day, they returned to buy one-half ounce of cocaine for $850. On November 2, 1987, Sanders approached House to discuss a larger purchase of one and one-half to two ounces of cocaine. After checking with a source, Sanders arranged for the drug to be delivered to a convenience store parking lot, agreeing on a price of $2,500. A woman in a white car delivered the cocaine, which House purchased while Sanders and McNair were out of sight.

In his defense, Sanders claimed he believed he was selling baking soda rather than cocaine. He asserted that McNair proposed a scheme involving the sale of a counterfeit substance to someone expecting an inheritance. Sanders admitted to selling the white powder to House but insisted it was not cocaine. He denied any sale on November 2, although he acknowledged some involvement in the events of that night.

Travis Drayton testified about discussions with McNair, who suggested they sell a substance posing as cocaine, but was actually baking soda. The first discussion occurred on October 27, 1987, with McNair planning for the defendant to sell the counterfeit substance on that date, the following day, and on a later unspecified date. McNair did not testify at trial. The defendant sought to have the entrapment defense presented to the jury, which the trial court denied. On appeal, it was determined that the trial court erred in not submitting the entrapment defense for six of the eight charges against the defendant. However, as the defense counsel did not object during trial and the error was not deemed plain error, a new trial was not warranted. A jury instruction on entrapment is warranted when credible evidence supports the defense and is viewed favorably for the defendant. The entrapment defense requires proof that the defendant was induced by a government agent to commit a crime conceived by that agent. McNair, acting as a police informant under law enforcement direction and compensation, persuaded the defendant to engage in the scheme, indicating that the criminal design originated from McNair. Furthermore, both the defendant and Drayton testified that McNair initiated the scheme discussions. For an entrapment instruction, the defendant must also admit to the acts underlying the offense or deny the requisite intent for the crime.

A defendant may assert an entrapment defense even while denying intent, as entrapment claims that the government, not the defendant, instigated the crime. In North Carolina, while a defendant typically cannot assert entrapment if they deny an essential element of the offense, they can do so if they admit to the acts constituting the crime but deny the necessary intent. The defendant admitted to selling a substance later identified as cocaine on two occasions but claimed he believed he was selling baking soda, thus denying knowledge of the substance being a controlled substance. This denial does not bar an entrapment defense since it pertains to intent rather than the act itself. The defendant's admissions warranted a jury instruction on entrapment for the six charges related to these sales. Furthermore, regarding charges stemming from actions on November 2, 1987, while the defendant acknowledged some involvement, he explicitly denied selling cocaine that day, asserting he did not sell anything to Agent House during that encounter.

Defendant denied involvement in a cocaine sale on November 2, stating that others managed the transaction, which conflicted with his admissions regarding his actions that day. Despite his denials, the court noted that such conflicting testimony does not equate to an admission of guilt for the underlying crime. The trial court correctly refused to instruct the jury on entrapment concerning the trafficking and conspiracy charges, although it erred by not including this instruction for six other charges. However, this omission was not deemed plain error, as it likely did not impact the conviction. The jury had to find that the defendant knowingly sold cocaine, contradicting his claim that he believed he was selling baking soda. Thus, it is unlikely they would have accepted his entrapment defense. Additionally, defendant's challenge regarding the trial court's refusal to allow questions about cocaine purity lacked supporting authority and was considered abandoned. The appellate court affirmed the trial court's decisions.