State v. Hayes

877 S.E.2d 339 (Table)

STATE of North Carolina

v.Kevin Lamont HAYES, Defendant.

No. COA21-613

Court of Appeals of North Carolina.

Filed September 20, 2022

MURPHY, Judge.

¶ 1 Entrapment occurs when acts of persuasion, trickery, or fraud are carried out by law enforcement officers or their agents to induce a defendant to commit a crime and when the criminal intent lies with law enforcement. Criminal intent does not lie with law enforcement when a defendant is independently predisposed to engage in the criminal behavior. Where a defendant moves for an entrapment instruction, the trial court must give the instruction if there is sufficient evidence, when viewed in the light most favorable to the defendant and when taking the defendant's evidence as true, for the jury to reasonably infer that the defendant was entrapped. A defendant bears the burden of proving entrapment; and, if a trial court erred in failing to instruct on entrapment, the error must also be prejudicial to entitle a defendant to a new trial.

¶ 2 Here, Defendant requested an entrapment instruction that the trial court did not give despite there being evidence, when viewed in the light most favorable to Defendant and when taking Defendant's testimony as true, that entitled Defendant to an instruction on entrapment. However, Defendant was not prejudiced by this error due to the weakness of the evidence of entrapment and the strength of the evidence of his predisposition to commit the crimes charged.

BACKGROUND

¶ 3 This appeal originates from Defendant Kevin Hayes's convictions of two counts of possession with intent to sell or deliver marijuana, two counts of possession with intent to sell or deliver methamphetamine, two counts of selling methamphetamine, and having attained habitual felon status. Defendant's convictions for these offenses arise out of his sale of marijuana and methamphetamine to Sergeant Jagger Naves, an undercover officer whom Defendant met at a drug purchase organized by his childhood friend, Kimberly.

¶ 4 Kimberly was a drug addict who became a police informant for Sgt. Naves. On 19 January 2018, in the presence of Sgt. Naves, Kimberly texted Defendant to arrange for the purchase of marijuana and methamphetamine after she had brought up Defendant as a potential target for a narcotics investigation to Sgt. Naves. The text message indicated that Sgt. Naves was looking for marijuana and methamphetamine and had $200.00 to spend. The purchase was scheduled to take place at the parking lot of a Walmart.

¶ 5 Kimberly and Sgt. Naves arrived, and Defendant was shopping inside. A law enforcement surveillance team was also present. Defendant eventually came to the car, sat in the rear passenger seat, and placed two bags of methamphetamine and marijuana on the center console. Sgt. Naves gave Defendant $200.00 in cash, at which point Defendant gave Kimberly a small bag of what appeared to be marijuana and left the vehicle.

¶ 6 Defendant was contacted about a second potential sale on 6 February 2019 after Kimberly indicated to Sgt. Naves that Defendant was in a position to sell more drugs. Again, Kimberly informed Defendant that Sgt. Naves had $200.00 and was looking to purchase marijuana and methamphetamine. This time, they arranged to meet at Kimberly's residence. Defendant was hesitant to meet with Sgt. Naves directly and wanted to just meet with Kimberly; however, after Sgt. Naves threatened to leave and buy from someone else, Defendant eventually showed up at the residence. Defendant placed the marijuana and methamphetamine on the driver seat of his car and told Sgt. Naves to put the $200.00 on the driver seat; after doing so, Sgt. Naves left.

¶ 7 Defendant was subsequently indicted for two counts of possession with intent to sell or deliver marijuana, two counts of possession with intent to sell or deliver methamphetamine, two counts of selling methamphetamine, and having attained habitual felon status.

¶ 8 Defendant's trial began on 21 April 2021. During his case, Defendant testified that,

without Kim being my best friend at the time, I would have never ever been around no meth, period. You know, the only reason why that I did that little favor for her is because she asked me. She was begging me. And then once I got to the house, she begged me to get out of the car.

He also testified:

I don't sell meth. The only reason why I was stuck in the predicament was because of Kimberly Hill.

....

The crumbs was so small of the meth, listen, I ain't never been around meth, period. And if it wasn't for her, I wouldn't have ever been around meth, period. I wouldn't even be sitting right here.

....

I would have never ever been around any meth, period. I smoke weed all the time. I done smoke -- me and Kimberly, we hang, we grew up together. That's the only reason why I did that favor for her. I would never be in the predicament if it wasn't for her just because she went and did. And that was the only time that I was around that drug, period.

....

Me and Kimberly been friends ever since we were young, really young. Grew up together. We always hang out. They know we hang out.

....

Now, before all this happened Kimberly, she -- and then she came to my job one day. We always hang out. She came to my job and she was begging me. She was begging me to find her some. ‘Cause the day when she came up there she was with one of our old friends, ex-husbands, so, you know, I didn't pay no -- me and Kim, we so cool that I'm not even thinking about it. So, eventually, maybe, like, later on in that week I was, like, well, I just grab it for her, you know, just harmless. It's so small, it's harmless. It's not going to kill her, come on. So I -- once I did it, you know, I know I made a mistake. I know I made a mistake even just by trying to help her out. But, you know, me and Kim are so cool, like, she like my little sister, you know, like, we've always hung out.

But anyway, once I get there -- ‘cause I don't even remember seeing him. The first time he said I seen him, I don't remember that. But only time I remember seeing him is at her house. And once I get there, he said that I -- that he talked to me. He didn't talk to me. I didn't talk to him. I didn't know him. Once I pulled up, she walked to my car begging me to get out the car. And I was telling her, "Kim, come on. Now, like, I got to get back to my little boy." ‘Cause my momma had my son. I got a three-year-old. My momma had my son. I was trying to get back to my -- my kid. I ain't got time to be playing around, trying to do a little favor so she can hang out with her little friend so I can go, you know. So she begged me to get out of the car, and that's part of the -- the entrapment part.

And I even offered to tell her, I told her, I said, "Kim" -- because she tried to call me back, and I said, "Kim, if you really want to do that, just go meet him yourself." But she never did call me back. She didn't want to go meet with him herself. She wanted me to do it. I should have known then that she was trying to get me in trouble.

....

But as far as that, I wouldn't -- I would have never ever been around meth, period, if it wasn't for her in this instance right here. Like I said, me being young riding around smoking weed, I might get pulled or something, you know, and I got weed in the car, that's just young and being dumb, you understand what I'm saying? .... I got some stuff on my background, but it's only marijuana.

....

I'm not a meth dealer. Like, I smoke weed. I've been around weed all my life. The only thing I did was she begged me to go to somebody's house because she knew I knew where she -- I can grab her something real quick. She told me -- she told me she's hanging with our old friends. What are you thinking about then. I just ran and got it for her real quick and dropped it off and I left.

¶ 9 On cross-examination, Defendant acknowledged getting paid $200.00 both times for these "favors." He also testified, "I said weed wasn't nothing and I wouldn't have ever ever been around any meth if it wasn't for Kimberly. This was the only time that I was around any kind of meth when Kimberly and [Sgt. Naves] did this illegal stuff, the entrapment part, the bribery part."

¶ 10 At the charging conference, the following exchange occurred:

THE COURT: .... Now, [ ], do you wish to be heard about 309.10, entrapment?

[THE STATE]: I don't believe there is any evidence of that, Your Honor. There have been no motions of [ ] [D]efendant. I would ask Your Honor not include that.

THE COURT: When you say no motions, there's been no --

[THE STATE]: No filed motions, Your Honor, in reference to any suppression or anything of that matter that I don't think entrapment is appropriate here just because he has said entrapment and bribery.

THE COURT: Well, I realize he just said it.

[THE STATE]: Yes.

THE COURT: Do you wish to be heard on that, [Defendant]?

[ ] DEFENDANT: Yes, because it's illegal and you can't do that.

THE COURT: Okay. Well --

[ ] DEFENDANT: Like, regardless of, like, whatever happened, like, between me and her, like, when it come down to, if somebody's, like, breaking the law on their own, it's different. But when somebody is begging somebody to do something for them just to get that person in trouble and that's only reason, sole purpose of just -- just getting that person in trouble just to get yourself out of trouble, I've been studying this, like, and entrapment, like, you read it. You see what it says. I mean, you're a smart man, but this says -- this says the action of tricking someone into committing a crime in order to secure their prosecution, that's illegal. That's exactly what happened. She tricked me to go do something for her that I ain't have nothing to do with. I would never ever been around no methamphetamine, period. The only thing I ever did all my life was smoke some weed. That's it, the only thing.

So we all sitting here under oath, right, and the definition of evidence, like, it's there. The actions of tricking someone into

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