State v. Keller, ___ N.C. ___, ___ S.E.2d ___ (Jun. 5, 2020)

The defendant was charged with solicitation of a child by computer under G.S. 14-202.3 after he responded to a Craigslist personal advertisement posted by a police detective posing as a 15-year-old. At trial the defendant requested a jury instruction on the defense of entrapment, which the trial court denied. The defendant was convicted and appealed. A divided Court of Appeals affirmed, with the majority concluding that the defendant’s request for an entrapment instruction was properly denied when the evidence showed that he was willing to engage in criminal activity and defendant failed to show that he was not predisposed to commit the act. State v. Keller, ___ N.C. App. ___, 828 S.E.2d 578 (2019). The dissenting judge would have concluded that the defendant was entitled to the instruction.

The Supreme Court reversed the Court of Appeals and remanded for a new trial. A defendant is entitled to jury instructions on entrapment if he presents “some credible evidence” tending to show that he was a victim of entrapment. Here, viewing the evidence in the light most favorable to the defendant, the Court concluded that he made the requisite showing. The defendant testified that he initially believed the undercover detective to be 18 years old because Craigslist requires age verification to post a personal ad. And once the detective said via email that he was 15, the defendant repeatedly said they would have to wait to have sex until the detective was of age, at which point the detective steered the conversation back toward sex. Taking those facts as true, the Court concluded that a reasonable juror could have found that the defendant did not have a willingness or predisposition to commit the charged crime, and that he was thus entitled to an instruction on entrapment. The Court also concluded that the trial court erred by finding that the defendant’s request for a jury instruction on entrapment was inconsistent with his testimony that he traveled to meet the detective to help him, not to commit a sexual act with him. In general, a defendant cannot simultaneously deny committing an act and also say that he was entrapped into committing it. Here, however, the defendant did not deny the act, but rather only disputed his criminal intentions for the meeting. The entrapment defense therefore remained available. Finally, the Court held that the error was prejudicial and remanded for a new trial.

Justice Newby dissented, joined by Justice Morgan, stating his view that the entrapment defense is not available to a defendant who does not admit to all the elements of the charged offense, and that the defendant’s continued pursuit of the undercover detective even after learning that he was underage showed a predisposition to commit criminal acts that barred an entrapment defense.