{ "id": 8919598, "name": "STATE OF NORTH CAROLINA v. ALVIN TERRILL FOSTER, JR.", "name_abbreviation": "State v. Foster", "decision_date": "2004-02-17", "docket_number": "No. COA03-348", "first_page": "665", "last_page": "673", "citations": [ { "type": "official", "cite": "162 N.C. App. 665" } ], "court": { "name_abbreviation": "N.C. Ct. App.", "id": 14983, "name": "North Carolina Court of Appeals" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "66 P.3d 987", "category": "reporters:state_regional", "reporter": "P.3d", "case_ids": [ 9143827, 9143787 ], "weight": 2, "year": 2003, "pin_cites": [ { "page": "990", "parenthetical": "holding that \"[a] defendant who intended to possess small amounts of an illegal drug could be entrapped by officers into possessing a trafficking quantity or even a quantity sufficient to support a charge of intent to distribute\"" }, { "page": "991", "parenthetical": "Johnson, P.J., concurring" } ], "opinion_index": 0, "case_paths": [ "/p3d/66/0987-02", "/p3d/66/0987-01" ] }, { "cite": "343 F.3d 1116", "category": "reporters:federal", "reporter": "F.3d", "case_ids": [ 9098179 ], "year": 2003, "pin_cites": [ { "page": "1128", "parenthetical": "\"[sentencing entrapment occurs when a defendant is predisposed to commit a lesser crime, but is entrapped into committing a more significant crime that is subject to more severe punishment because of government conduct\"" } ], "opinion_index": 0, "case_paths": [ "/f3d/343/1089-01" ] }, { "cite": "300 S.E.2d 375", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1983, "pin_cites": [ { "page": "378-79", "parenthetical": "\"[i]n deciding whether a defect in the jury instruction constitutes 'plain error,' the appellate court must examine the entire record and determine if the instructional error had a probable impact on the jury's finding of guilt\"" } ], "opinion_index": 0 }, { "cite": "307 N.C. 655", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8565416 ], "year": 1983, "pin_cites": [ { "page": "660-61", "parenthetical": "\"[i]n deciding whether a defect in the jury instruction constitutes 'plain error,' the appellate court must examine the entire record and determine if the instructional error had a probable impact on the jury's finding of guilt\"" } ], "opinion_index": 0, "case_paths": [ "/nc/307/0655-01" ] }, { "cite": "307 S.E.2d 436", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1983, "pin_cites": [ { "page": "437" } ], "opinion_index": 0 }, { "cite": "64 N.C. App. 301", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8526703 ], "year": 1983, "pin_cites": [ { "page": "303" } ], "opinion_index": 0, "case_paths": [ "/nc-app/64/0301-01" ] }, { "cite": "381 S.E.2d 827", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1989, "pin_cites": [ { "page": "830", "parenthetical": "emphasis in original" } ], "opinion_index": 0 }, { "cite": "95 N.C. App. 56", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8519444 ], "year": 1989, "pin_cites": [ { "page": "61", "parenthetical": "emphasis in original" } ], "opinion_index": 0, "case_paths": [ "/nc-app/95/0056-01" ] }, { "cite": "543 S.E.2d 160", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 2001, "pin_cites": [ { "page": "165", "parenthetical": "citation omitted" }, { "page": "165" } ], "opinion_index": 0 }, { "cite": "141 N.C. App. 698", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9443057 ], "weight": 2, "year": 2001, "pin_cites": [ { "page": "706", "parenthetical": "citation omitted" }, { "page": "706" } ], "opinion_index": 0, "case_paths": [ "/nc-app/141/0698-01" ] }, { "cite": "246 S.E.2d 748", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1978, "pin_cites": [ { "page": "750" }, { "page": "750" } ], "opinion_index": 0 }, { "cite": "295 N.C. 510", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8564751 ], "weight": 2, "year": 1978, "pin_cites": [ { "page": "513" }, { "page": "513" } ], "opinion_index": 0, "case_paths": [ "/nc/295/0510-01" ] }, { "cite": "215 S.E.2d 589", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1975, "pin_cites": [ { "page": "594", "parenthetical": "citation omitted" } ], "opinion_index": 0 }, { "cite": "288 N.C. 19", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8564626 ], "year": 1975, "pin_cites": [ { "page": "27", "parenthetical": "citation omitted" } ], "opinion_index": 0, "case_paths": [ "/nc/288/0019-01" ] }, { "cite": "589 S.E.2d 363", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 2003, "pin_cites": [ { "parenthetical": "emphasis in original" } ], "opinion_index": 0 }, { "cite": "357 N.C. 581", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 491491, 491461, 491685, 491890, 491443, 491476, 491487, 491516, 491519 ], "year": 2003, "opinion_index": 0, "case_paths": [ "/nc/357/0581-09", "/nc/357/0581-01", "/nc/357/0581-03", "/nc/357/0581-04", "/nc/357/0581-07", "/nc/357/0581-02", "/nc/357/0581-05", "/nc/357/0581-06", "/nc/357/0581-08" ] }, { "cite": "584 S.E.2d 88", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 2003, "pin_cites": [ { "page": "93" }, { "page": "93" } ], "opinion_index": 0 }, { "cite": "409 S.E.2d 700", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 4, "year": 1991, "pin_cites": [ { "page": "703" }, { "page": "703" } ], "opinion_index": 0 }, { "cite": "104 N.C. App. 477", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8522343 ], "weight": 2, "year": 1991, "pin_cites": [ { "page": "481" }, { "page": "481" } ], "opinion_index": 0, "case_paths": [ "/nc-app/104/0477-01" ] }, { "cite": "406 S.E.2d 833", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1991, "pin_cites": [ { "page": "836" }, { "page": "836" }, { "page": "836" } ], "opinion_index": 0 }, { "cite": "329 N.C. 654", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2556155 ], "weight": 3, "year": 1991, "pin_cites": [ { "page": "660" }, { "page": "660" }, { "page": "660" } ], "opinion_index": 0, "case_paths": [ "/nc/329/0654-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 90-95", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "weight": 2, "pin_cites": [ { "page": "(h)(3)" }, { "page": "(h)(3)" } ], "opinion_index": 0 } ], "analysis": { "cardinality": 854, "char_count": 21868, "ocr_confidence": 0.773, "pagerank": { "raw": 1.1940366107981019e-07, "percentile": 0.5920470652922236 }, "sha256": "83510d429f4b5940a6aaf5f50c137ef1d47b3d690bc69e455d246375625b5e71", "simhash": "1:ca2ff463f2fb6369", "word_count": 3590 }, "last_updated": "2023-07-14T16:27:54.754463+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges CALABRIA and ELMORE concur." ], "parties": [ "STATE OF NORTH CAROLINA v. ALVIN TERRILL FOSTER, JR." ], "opinions": [ { "text": "BRYANT, Judge.\nAlvin Terrill Foster, Jr. (defendant) appeals a judgment dated 7 August 2002 entered consistent with a jury verdict finding him guilty of trafficking in cocaine by possession and of possession with intent to manufacture, sell or deliver cocaine.\nOn 14 May 2002, defendant was indicted for \u201ctraffic[king] by possessing 28 grams or more but less than 200 grams of cocaine\u201d and \u201cpossessing] cocaine, with the intent to manufacture, sell and deliver a controlled substance.\u201d At trial, Michael Washington, a law enforcement officer with the narcotics unit of the Onslow County Sheriff\u2019s Department, testified that, on 31 October 2001, he had begun working on an arrangement with a drug dealer (the informant), who had just been taken into custody, to identify potential purchasers for one ounce (approximately 28.3 grams) of cocaine as targets in an undercover operation. While the informant was at the police station talking to Officer Washington, the informant received a call on his cellular telephone from defendant seeking to purchase some cocaine. The informant and defendant talked on the cellular telephone two or three more times that day, setting up the deal. Officer Washington testified he did not hear the terms of the arranged deal but was told by the informant that defendant had agreed to buy one ounce of powder cocaine for $800.00, with $500.00 to be paid upon delivery of the cocaine and $300.00 at a later time. A meeting for the payment of the second installment was not arranged.\nOfficer Washington testified that the street value of one ounce of cocaine, sold a gram at a time, could be $2,800.00 or more. The price, however, depends on whether the purchaser is a user or a dealer. A user would likely pay $100.00 per gram whereas \u201c[a] dealer w[ould] not pay that.\u201d In this case, \u201cthe subject agreed to $800[.00],\u201d which to Officer Washington indicated a \u201cseller amount\u201d as opposed to a \u201cuser amount.\u201d\nAround 6:00 p.m. on 31 October 2001, Officer Washington drove the informant to a prearranged location to meet defendant. Upon arrival, the informant spotted defendant standing in a parking lot. The informant exited the vehicle and walked over to defendant, talking to him for a few minutes outside of Officer Washington\u2019s earshot. The two men then returned to the vehicle. The informant sat down in the front passenger seat, and defendant got into the back seat. After the informant told Officer Washington defendant wanted to see the cocaine, Officer Washington handed defendant a plastic bag of cocaine along with a digital scale. Officer Washington testified he showed defendant how to turn on the scale and then watched defendant weigh the cocaine. In response to the officer\u2019s question if \u201cthat [was] good,\u201d defendant answered \u201cyeah\u201d and handed the cocaine and scale back to Officer Washington. Defendant subsequently exited the vehicle to get the purchase money. Five minutes later, defendant returned to the vehicle, handed Officer Washington $500.00, and received the cocaine in exchange. As defendant stepped out of the vehicle, Officer Washington gave the \u201ctake-down signal,\u201d and defendant was arrested. When defendant was searched incident to arrest, the plastic bag, later determined to contain 32.2 grams of cocaine hydrochloride (also known as powder cocaine), was found in his pocket. The informant did not testify at trial.\nDefendant testified that he knew the informant as a drug dealer and admitted to having bought 5 grams of cocaine for $500.00 when the informant approached him at a football game about a month prior to the events on 31 October 2001. On 31 October 2001, the informant again contacted defendant, this time by telephone, offering to sell him drugs. Defendant agreed to another purchase of 5 grams of cocaine for $500.00 from the informant to help relieve the stress he was experiencing due to marital problems. The two men talked a few more times on the telephone that day to arrange the time and location for the transaction. After the informant\u2019s arrival at the prearranged location that evening, the informant got out of a vehicle driven by Officer Washington and walked over to defendant, talking to him for a moment. Defendant testified that the informant \u201cknew what I wanted\u201d: 5 grams of cocaine, the same as the previous purchase. The two men then got into the vehicle, with the informant taking the front passenger seat and defendant sitting,down in the back. Officer Washington handed defendant a plastic bag of cocaine together with a scale, which defendant set on the back seat. Defendant looked at the items for only \u201ctwo or three seconds\u201d before handing them back to Officer Washington. Defendant did not weigh the bag and testified that when he exited the vehicle to get the $500.00 purchase money, they were supposed to cut the 5 gram portion for him. After his return with the money, defendant did not have a chance to observe the size of the bag handed to him because it was \u201csqueezed up\u201d and he was arrested the moment he held the bag in his hand. Defendant further testified that he was just a user who had only started because of marital problems and never intended to buy an ounce of cocaine. When defendant told Officer Washington in the vehicle that \u201cit was good,\u201d defendant only meant that \u201cit looked like the same stuff [he] had [bought] before.\u201d The comment was not directed toward the weight of the cocaine.\nAt the close of the State\u2019s evidence and at the close of all the evidence, defendant moved to dismiss the charges against him. The trial court denied the motions. During the charge conference, defendant argued for the trial court to include, based on the evidence presented at trial, a jury instruction on trafficking that defendant\u2019s possession of more than 28 grams of cocaine had to be knowing. The trial court was sympathetic to defendant\u2019s argument and allowed both sides time to find case law on the issue. When no relevant case law was found, the trial court, in interpreting N.C. Gen. Stat. \u00a7 90-95(h)(3), ruled that the knowledge requirement referred only to the controlled substance and not its quantity. Defendant\u2019s objection to the verdict sheet was noted for the record. As to the charge of trafficking in cocaine, the trial court instructed the jury that for a guilty verdict it had to find beyond a reasonable doubt that \u201cdefendant knowingly possessed cocaine\u201d and \u201cthat the amount of cocaine which . . . defendant possessed was 28 or more grams.\u201d After deliberations had begun, the trial court received a note from the jury requesting permission to examine the scale and the bag containing the controlled substance. The trial court denied the request and instructed the jury to continue its deliberations.\nThe issues are whether the trial court: (I) erred in denying defendant\u2019s motion to dismiss the charges and (II) committed plain error in failing to instruct the jury on entrapment.\nI\nDefendant first contends because he did not know that the bag of cocaine he bought contained more than 5 grams of cocaine, and a weight of 28 grams or more is (1) an element of trafficking in cocaine and (2) acceptable evidence from which intent to manufacture, sell or deliver can be inferred, his motions to dismiss the trafficking and possession with intent to manufacture, sell or deliver charges should have been granted. See N.C.G.S. \u00a7 90-95(h)(3) (2003) (\u201c[a]ny person who . . . possesses 28 grams or more of cocaine . . . shall be guilty of . . . \u2018trafficking in cocaine\u2019 \u201d); State v. Morgan, 329 N.C. 654, 660, 406 S.E.2d 833, 836 (1991) (holding the full ounce of cocaine the defendant conspired to possess \u201c \u2018was more than an individual would possess for his personal consumption\u2019 \u201d and the \u201cquantity alone, therefore, was sufficient evidence to support the inference that [the] defendant intended to deliver or sell the cocaine\u201d) (citation omitted). We disagree.\nIn reviewing a motion to dismiss, the court determines whether (1) there is substantial evidence of each essential element of the offense charged and (2) the defendant was the perpetrator of the offense. State v. Mooneyhan, 104 N.C. App. 477, 481, 409 S.E.2d 700, 703 (1991). \u201cSubstantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.\u201d Id.\nDefendant\u2019s argument with respect to the trafficking charge rests on the proposition that knowledge of the weight of the cocaine was an element of the offense under N.C. Gen. Stat. \u00a7 90-95(h)(3). Defendant was unable to find any authority on this point, but since the filing of the briefs in this case, the Court of Appeals has unequivocally rejected this argument in State v. Shelman, \u2014 N.C. App. \u2014, \u2014, 584 S.E.2d 88, 93, disc. review denied, 357 N.C. 581, 589 S.E.2d 363 (2003). This Court held \u201cthat to convict an individual of drug trafficking the State is not required to prove that [the] defendant had knowledge of the weight or amount of [the drug] which he knowingly possessed .... Instead, the statute requires only that the defendant knowingly possess . . . the controlled substance[].\u201d Id. (emphasis in original). Thus, as long as the amount found in the defendant\u2019s possession is equal to or greater than 28 grams, a conviction for trafficking may be obtained. Id. Consequently, defendant\u2019s contention as to the trafficking charge is without merit.\nDefendant further argues his lack of knowledge as to the weight of the cocaine warrants dismissal of the possession with intent to manufacture, sell or deliver charge because he lacked the requisite intent as a dealer. In ruling on a motion to dismiss, however, the evidence must be considered in the light most favorable to the State, giving it the benefit of every reasonable inference. Mooneyhan, 104 N.C. App. at 481, 409 S.E.2d at 703. Furthermore, \u201cinconsistencies or contradictions[, as presented by defendant\u2019s testimony,] are disregarded\u201d because \u201c[t]he credibility of the witnesses and the weight to be given their testimony is exclusively a matter for the jury.\u201d Id. Therefore, so long as the State presented substantial evidence of intent, the motion to dismiss was properly denied.\nIn this case, Officer Washington testified that the informant had arranged with defendant for the purchase of one ounce of cocaine for $800.00, $500.00 of which was to be paid at the time of the transaction and $300.00 sometime thereafter. Officer Washington explained $800.00 was the price a dealer would pay for this amount whereas a user would pay around $100.00 per gram. There was thus evidence from which a reasonable mind could conclude that defendant was purchasing the cocaine as a dealer with the intent to manufacture, sell or deliver. Id.; see Morgan, 329 N.C. at 660, 406 S.E.2d at 836. Accordingly, the trial court did not err in failing to dismiss the charge.\nII\nDefendant next contends the evidence presented at trial warranted an instruction to the jury on the defense of entrapment.\nEntrapment is defined as \u201c \u2018the inducement of one to commit a crime not contemplated by him, for the mere purpose of instituting a criminal prosecution against him.\u2019 \u201d State v. Stanley, 288 N.C. 19, 27, 215 S.E.2d 589, 594 (1975) (citation omitted). To establish entrapment, a defendant must show (1) \u201cacts of persuasion, trickery or fraud carried out by law enforcement officers or their agents to induce a defendant to commit a crime,\u201d and (2) a \u201ccriminal design [that] originated in the minds of the government officials, rather than with the innocent defendant, such that the crime is the product of the creative activity of the law enforcement authorities.\u201d State v. Walker, 295 N.C. 510, 513, 246 S.E.2d 748, 750 (1978). Thus, \u201c \u2018[t]he defense is not available to a defendant who was predisposed to commit the crime charged absent the inducement of law enforcement officials.\u2019 \u201d State v. Thompson, 141 N.C. App. 698, 706, 543 S.E.2d 160, 165 (2001) (citation omitted). Although in order to raise the defense of entrapment \u201c[a] defendant also must admit to having committed the acts underlying the offense with which he is charged in order to receive an entrapment instruction!,] ... an entrapment defense may be employed by a defendant who denies having the intent required for the commission of a crime.\u201d State v. Sanders, 95 N.C. App. 56, 61, 381 S.E.2d 827, 830 (1989) (emphasis in original). The defendant carries the burden of proving entrapment to the satisfaction of the jury, Thompson, 141 N.C. App. at 706, 543 S.E.2d at 165, and \u201cis entitled to a jury instruction on entrapment whenever the defense is supported by [the] defendant\u2019s evidence, viewed in the light most favorable to the defendant,\u201d State v. Jamerson, 64 N.C. App. 301, 303, 307 S.E.2d 436, 437 (1983). Because defendant failed to request an instruction on entrapment in this case, he is subject to plain error analysis oh appeal and must therefore further establish that, but for the error, the jury would likely have reached a different conclusion. See State v. Odom, 307 N.C. 655, 660-61, 300 S.E.2d 375, 378-79 (1983) (\u201c[i]n deciding whether a defect in the jury instruction constitutes \u2018plain error,\u2019 the appellate court must examine the entire record and determine if the instructional error had a probable impact on the jury\u2019s finding of guilt\u201d).\nIn the case sub judice, defendant argues he was entrapped into committing the offenses of trafficking in cocaine and possession with intent to manufacture, sell or deliver cocaine, as opposed to the offense of simple possession he intended to commit, and as a result was subjected to an enhanced criminal penalty. Entrapment affecting the severity of the punishment imposed for a criminal act has been recognized by other states and in federal court. See United States v. Si, 343 F.3d 1116, 1128 (9th Cir. 2003) (\u201c[sentencing entrapment occurs when a defendant is predisposed to commit a lesser crime, but is entrapped into committing a more significant crime that is subject to more severe punishment because of government conduct\u201d); Leech v. State, 66 P.3d 987, 990 (Okla. 2003) (holding that \u201c[a] defendant who intended to possess small amounts of an illegal drug could be entrapped by officers into possessing a trafficking quantity or even a quantity sufficient to support a charge of intent to distribute\u201d). Recognition of sentencing entrapment as a form of entrapment under North Carolina law is consistent with the definition of entrapment adopted in this State. See 2 N.C.P.I. \u2014 Crim. 309.10 (2001) (elements of the defense in this case require that \u201cthe criminal intent to commit [trafficking in cocaine and possession with intent to manufacture, sell or deliver cocaine] did not originate in the mind of the defendant\u201d and \u201cpersuasion or trickery [was used] to cause the defendant to commit [these] crime[s] which he was not otherwise willing to do\u201d).\nDefendant did not deny having committed the essential elements of trafficking in cocaine and only asserts that he lacked the requisite intent to commit either of the charges against him. The evidence presented by defendant at trial, viewed in the light most favorable to him, indicates that defendant was merely a user, not a dealer, and that the 31 October 2001 purchase was only the second time in defendant\u2019s adult life that he had procured drugs. In addition, defendant testified the amount previously purchased was restricted to 5 grams for $500.00. As this testimony, which went unchallenged by the State, served to show that defendant was not predisposed to trafficking in cocaine or possession with intent to manufacture, sell or deliver cocaine, he was not foreclosed from receiving an entrapment instruction if the evidence further established \u201cacts of persuasion, trickery or fraud carried out by law enforcement officers or their agents to induce [him] to commit [the] crime[s].\u201d Walker, 295 N.C. at 513, 246 S.E.2d at 750.\nAs to this element of the defense, the State\u2019s evidence showed that the police had already decided to target someone for a one-ounce buy before the telephone contact between the informant and defendant occurred. According to defendant, it was the informant who telephoned him and suggested a drug purchase. Defendant agreed to 5 grams for $500.00, the user rate for this amount of cocaine, just as he had done the month before, but the bag of cocaine ultimately delivered to him contained more than an ounce of cocaine. Although the bag handed to defendant in the vehicle appeared bigger than his previous purchase from the informant, defendant testified that Officer Washington and the informant were supposed to cut his share of the cocaine while he stepped outside to get the purchase money. When defendant returned, the deal was consummated so quickly that he did not have time to observe the \u201csqueezed[-]up\u201d plastic bag Officer Washington handed him. Based on defendant\u2019s version of the controlled sale by the police, it is thus possible that defendant was tricked by law enforcement into buying a larger amount of cocaine than he had intended, entitling him to an instruction on the defense of entrapment.\nWe now consider whether, in light of defendant\u2019s failure to request such an instruction, he is entitled to a new trial under a plain error analysis. As held in Shelman, knowledge of the weight of a controlled substance is not an essential element of trafficking in cocaine. Shelman, 159 N.C. App. at 306, 584 S.E.2d at 93. Since the trial court instructed the jury accordingly, the jury could not consider defendant\u2019s belief about the amount of cocaine purchased in reaching its verdict on the trafficking charge. In addition, the large amount of cocaine found on defendant was sufficient by itself for the jury to find that defendant had the requisite intent for the offense of possession with intent to manufacture, sell or deliver. See Morgan, 329 N.C. at 660, 406 S.E.2d at 836. Finally, it seems that defendant\u2019s testimony had an impact on both the judge and the jury. During the charge conference, the judge appeared sympathetic to defendant\u2019s version of the events and allowed defendant extended time to research legal authority on whether intent as to the weight of a controlled substance constitutes an element of trafficking. The jury in turn requested the trial court\u2019s permission to see the bag of cocaine and the scale during deliberations despite uncontradicted evidence from the State that the cocaine found on defendant weighed 32.2 grams. This request indicates that the weight and appearance of the bag remained an issue for the jury. As such, there is a reasonable possibility that given an entrapment instruction the jury, considering defendant\u2019s previous \u201cuser\u201d purchase, the determination of the police to target someone for at least an ounce of cocaine, the immediate arrest following defendant\u2019s acceptance of the \u201csqueezed[-]up\u201d package, and the fact that the informant was never called to testify, would have come out in defendant\u2019s favor and only found him guilty of the lesser-included offense of simple possession. See Leech, 66 P.3d at 991 (Johnson, P.J., concurring) (observing that \u201c[t]he justice system should look with a jaundiced eye upon reverse sting operations\u201d). We thus reverse and remand this case for a new trial in accordance with this opinion.\nNew trial.\nJudges CALABRIA and ELMORE concur.\n. Based on this Court\u2019s holding in Shelman, we also overrule defendant\u2019s assignment of error that the trial court erred in failing to instruct the jury that it had to find defendant \u201cto knowingly possess 28 grams or more of cocaine\u201d to find him guilty of trafficking in cocaine.\n. Defendant has no criminal record except for a conviction of simple possession of marijuana when he was fourteen years old.", "type": "majority", "author": "BRYANT, Judge." } ], "attorneys": [ "Attorney General Roy Cooper, by Assistant Attorney General J. Bruce McKinney, for the State.", "The Kelly Law Firm, by George E. Kelly, III, for defendant-appellant." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. ALVIN TERRILL FOSTER, JR.\nNo. COA03-348\n(Filed 17 February 2004)\n1. Drugs\u2014 trafficking in cocaine by possession \u2014 possession with intent to manufacture, sell, or deliver cocaine \u2014 motion to dismiss \u2014 sufficiency of evidence\nThe trial court did not err by denying defendant\u2019s motion to dismiss the charges of trafficking in cocaine by possession and possession with intent to manufacture, sell, or deliver cocaine, because: (1) knowledge of the weight of the cocaine was not an element of the trafficking charge, and as long as the amount found in defendant\u2019s possession is equal to or greater than 28 grams, a conviction for trafficking may be obtained; and (2) there was evidence from which a reasonable mind could conclude that defendant was purchasing the cocaine as a dealer with the intent to manufacture, sell, or deliver.\n2. Criminal Law\u2014 entrapment \u2014 failure to instruct plain error\nThe trial court committed plain error in a trafficking in cocaine by possession and possession with intent to manufacture, sell, or deliver cocaine case by failing to instruct the jury on the defense of entrapment, because: (1) based on defendant\u2019s version of the controlled sale by the police, it was possible that defendant was tricked by law enforcement into buying a larger amount of cocaine than he intended; and (2) there was a reasonable possibility that given an entrapment instruction the jury, considering defendant\u2019s previous \u201cuser\u201d purchase, the determination of the police to target someone for at least an ounce of cocaine, the immediate arrest following defendant\u2019s acceptance of the squeezed-up package, and the fact that the informant was never called to testify, would have come out in defendant\u2019s favor and only found him guilty of the lesser-included offense of simple possession.\nAppeal by defendant from judgment dated 7 August 2002 by Judge Charles H. Henry in Onslow County Superior Court. Heard in the Court of Appeals 3 December 2003.\nAttorney General Roy Cooper, by Assistant Attorney General J. Bruce McKinney, for the State.\nThe Kelly Law Firm, by George E. Kelly, III, for defendant-appellant." }, "file_name": "0665-01", "first_page_order": 693, "last_page_order": 701 }