State v. Pratt, ___ N.C. App. ___, ___ S.E.2d ___ (Mar. 3, 2020)

In this drug trafficking case, the trial court did not err by refusing the defendant’s request to instruct the jury on the affirmative defense of entrapment.  The trial court did err, however, by entering a civil judgment against the defendant for attorney’s fees without first giving the defendant an opportunity to be heard on that issue. 

Viewed in the light most favorable to the defendant, the evidence showed that the defendant was persuaded by Jason Ford, a confidential informant working with the Onslow County Sheriff’s Office, to commit the crimes for which he was convicted.  As to the jury instruction on entrapment, the court explained that under precedent from the North Carolina Supreme Court,

The defense of entrapment is available when there are acts of persuasion, trickery or fraud carried out by law enforcement officers or their agents to induce a defendant to commit a crime and when the origin of the criminal intent lies with the law enforcement agencies. We note that this is a two step test and a showing of trickery, fraud or deception by law enforcement officers alone will not support a claim of entrapment. The defendant must show that the trickery, fraud or deception was practiced upon one who entertained no prior criminal intent.

(quoting and adding emphasis to State v. Hageman, 307 N.C. 1, 28 (1982)).  The court found that the defendant’s evidence showed the first element of entrapment but did not show the second, noting that the defendant’s testimony established that (1) the criminal opportunity at issue originated with a third party who was not working for or affiliated with the State; (2) the defendant told Ford about the opportunity; and (3) Ford thereafter encouraged the defendant to take advantage of the criminal opportunity and offered to help facilitate.  Reviewing the record, the court found that it demonstrated that Ford “merely afford[ed] the defendant an opportunity to commit the crime[s]” which he was predisposed to commit and, therefore, the defendant was not entitled to an instruction on entrapment.

The State conceded that the indigent defendant was not given an opportunity to be heard before the trial court entered the civil judgment against him for attorney’s fees and that this was error.  The court set aside the civil judgment and remanded for a new hearing on attorney’s fees.