{ "id": 4156243, "name": "STATE OF NORTH CAROLINA v. TEMETRIA SHATORIE DAVIS, Defendant", "name_abbreviation": "State v. Davis", "decision_date": "2008-02-19", "docket_number": "No. COA06-1707", "first_page": "735", "last_page": "744", "citations": [ { "type": "official", "cite": "188 N.C. App. 735" } ], "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": "622 S.E.2d 624", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12634533, 12634534, 12634535 ], "year": 2005, "opinion_index": 0, "case_paths": [ "/se2d/622/0624-01", "/se2d/622/0624-02", "/se2d/622/0624-03" ] }, { "cite": "614 S.E.2d 412", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12633144 ], "opinion_index": 0, "case_paths": [ "/se2d/614/0412-01" ] }, { "cite": "362 N.C. 91", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 12640416, 12640417, 12640421, 12640422, 12640425, 12640430 ], "year": 2007, "opinion_index": 0, "case_paths": [ "/se2d/657/0024-02", "/se2d/657/0024-03", "/se2d/657/0026-01", "/se2d/657/0026-02", "/se2d/657/0027-02", "/se2d/657/0029-02" ] }, { "cite": "647 S.E.2d 440", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12638955 ], "year": 2007, "pin_cites": [ { "page": "456" } ], "opinion_index": 0, "case_paths": [ "/se2d/647/0440-01" ] }, { "cite": "449 S.E.2d 402", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1994, "pin_cites": [ { "page": "411", "parenthetical": "holding defendant waived appellate review because he failed to timely object to the jury charge at trial and failed to allege plain error on appeal" } ], "opinion_index": 0 }, { "cite": "338 N.C. 193", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2517275 ], "year": 1994, "pin_cites": [ { "page": "208", "parenthetical": "holding defendant waived appellate review because he failed to timely object to the jury charge at trial and failed to allege plain error on appeal" } ], "opinion_index": 0, "case_paths": [ "/nc/338/0193-01" ] }, { "cite": "360 N.C. 73", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 3792929, 3788866, 3790212, 3789894, 3791562, 3791637, 3788407, 3796378, 3797567 ], "year": 2005, "opinion_index": 0, "case_paths": [ "/nc/360/0073-04", "/nc/360/0073-05", "/nc/360/0073-07", "/nc/360/0073-08", "/nc/360/0073-06", "/nc/360/0073-09", "/nc/360/0073-02", "/nc/360/0073-01", "/nc/360/0073-03" ] }, { "cite": "171 N.C. App. 328", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8436763 ], "pin_cites": [ { "page": "333" } ], "opinion_index": 0, "case_paths": [ "/nc-app/171/0328-01" ] }, { "cite": "343 F.3d 1116", "category": "reporters:federal", "reporter": "F.3d", "case_ids": [ 9098179 ], "year": 2003, "pin_cites": [ { "page": "1128" } ], "opinion_index": 0, "case_paths": [ "/f3d/343/1089-01" ] }, { "cite": "537 S.E.2d 490", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1999, "opinion_index": 0 }, { "cite": "350 N.C. 598", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 132296, 132113, 132039, 132263 ], "year": 1999, "opinion_index": 0, "case_paths": [ "/nc/350/0598-02", "/nc/350/0598-03", "/nc/350/0598-04", "/nc/350/0598-01" ] }, { "cite": "512 S.E.2d 428", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1999, "pin_cites": [ { "page": "434" } ], "opinion_index": 0 }, { "cite": "132 N.C. App. 453", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11238541 ], "year": 1999, "pin_cites": [ { "page": "461-62" } ], "opinion_index": 0, "case_paths": [ "/nc-app/132/0453-01" ] }, { "cite": "330 S.E.2d 476", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 4, "year": 1985, "pin_cites": [ { "page": "480" }, { "page": "579" }, { "page": "481" } ], "opinion_index": 0 }, { "cite": "313 N.C. 572", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4720057 ], "year": 1985, "pin_cites": [ { "page": "578" } ], "opinion_index": 0, "case_paths": [ "/nc/313/0572-01" ] }, { "cite": "391 S.E.2d 177", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1990, "opinion_index": 0 }, { "cite": "326 N.C. 561", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 5306007 ], "year": 1990, "opinion_index": 0, "case_paths": [ "/nc/326/0561-01" ] }, { "cite": "346 S.E.2d 488", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1986, "opinion_index": 0 }, { "cite": "317 N.C. 545", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4774041 ], "year": 1986, "opinion_index": 0, "case_paths": [ "/nc/317/0545-01" ] }, { "cite": "412 S.E.2d 308", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1991, "pin_cites": [ { "page": "312", "parenthetical": "citing State v. Diaz, 317 N.C. 545, 346 S.E.2d 488 (1986)" } ], "opinion_index": 0 }, { "cite": "330 N.C. 298", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2508946 ], "year": 1991, "pin_cites": [ { "page": "302-03", "parenthetical": "citing State v. Diaz, 317 N.C. 545, 346 S.E.2d 488 (1986)" } ], "opinion_index": 0, "case_paths": [ "/nc/330/0298-01" ] }, { "cite": "433 S.E.2d 187", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1993, "pin_cites": [ { "page": "190" } ], "opinion_index": 0 }, { "cite": "111 N.C. App. 636", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8523289 ], "year": 1993, "pin_cites": [ { "page": "641" } ], "opinion_index": 0, "case_paths": [ "/nc-app/111/0636-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 90-95", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "year": 2005, "pin_cites": [ { "page": "(h)(3)" } ], "opinion_index": 0 }, { "cite": "331 S.E.2d 652", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1985, "pin_cites": [ { "page": "659", "parenthetical": "\"Where, however, the error violates defendant's right to a trial by a jury of twelve, defendant's failure to object is not fatal to his right to raise the question on appeal.\"" } ], "opinion_index": 0 }, { "cite": "314 N.C. 28", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4689817 ], "year": 1985, "pin_cites": [ { "page": "39", "parenthetical": "\"Where, however, the error violates defendant's right to a trial by a jury of twelve, defendant's failure to object is not fatal to his right to raise the question on appeal.\"" } ], "opinion_index": 0, "case_paths": [ "/nc/314/0028-01" ] }, { "cite": "184 N.C. App. 553", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8186977 ], "year": 2007, "pin_cites": [ { "page": "575-76" } ], "opinion_index": 0, "case_paths": [ "/nc-app/184/0553-01" ] }, { "cite": "604 S.E.2d 913", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 2004, "opinion_index": 0 }, { "cite": "359 N.C. 179", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 3801835 ], "weight": 2, "year": 2004, "opinion_index": 0, "case_paths": [ "/nc/359/0179-01" ] }, { "cite": "592 S.E.2d 259", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 4, "year": 2004, "pin_cites": [ { "page": "264" }, { "page": "264" }, { "page": "264" } ], "opinion_index": 0 }, { "cite": "162 N.C. App. 665", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8919598 ], "weight": 4, "year": 2004, "pin_cites": [ { "page": "671-72" }, { "page": "671-72" }, { "page": "671-72" } ], "opinion_index": 0, "case_paths": [ "/nc-app/162/0665-01" ] } ], "analysis": { "cardinality": 857, "char_count": 21955, "ocr_confidence": 0.757, "pagerank": { "raw": 6.649927830299489e-08, "percentile": 0.40533946187596265 }, "sha256": "006d099fb26e09541ed97c00d0470c61375f2b45b39ce94e3726bf47b649eef5", "simhash": "1:cf6bd56a7fabe476", "word_count": 3612 }, "last_updated": "2023-07-14T21:34:30.605877+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges CALABRIA and JACKSON concur." ], "parties": [ "STATE OF NORTH CAROLINA v. TEMETRIA SHATORIE DAVIS, Defendant" ], "opinions": [ { "text": "GEER, Judge.\nDefendant Temetria Shatorie Davis appeals from her conviction of conspiracy to traffic in cocaine by possession. Defendant contends first that she was deprived of a unanimous jury verdict when the trial court instructed the jury on conspiracy to commit trafficking in cocaine without specifying that the trafficking occurred through possession. Because the trial court did not give any disjunctive instruction as to defendant and, in any event, the unanimity cases relied upon by defendant do not apply to a charge of conspiracy to traffic in cocaine, we hold that the trial court\u2019s instruction did not create a risk of a non-unanimous verdict.\nDefendant also argues that the sentencing entrapment defense, see State v. Foster, 162 N.C. App. 665, 671-72, 592 S.E.2d 259, 264, aff\u2019d by equally divided court, 359 N.C. 179, 604 S.E.2d 913 (2004), entitled her to an instruction on the lesser included offense, of conspiracy to commit possession of cocaine. Defendant, however, neither requested an instruction on the sentencing entrapment defense at trial nor assigned error on appeal to the court\u2019s failure to give such an instruction. Thus, the issue of sentencing entrapment is not before us. Since the evidence at trial supported only an instruction on conspiracy to traffic in cocaine, we hold that the trial court properly refused defendant\u2019s request for an instruction on conspiracy to commit possession of cocaine.\nFacts\nIn June 2005, Jeffrey Gamble was living with defendant\u2019s sister. While defendant was visiting Gamble and her sister on 23 June 2005, Gamble received several phone calls from Noy Sykeo. Gamble had known Sykeo for six or seven years, and Sykeo had been one of Gamble\u2019s drug suppliers. Sykeo asked Gamble, who owed Sykeo $500.00, if he could help Sykeo obtain two ounces of cocaine. Gamble in turn asked defendant if she knew someone who would have two ounces of cocaine. Defendant agreed to help and called Saint Griffin who was willing to supply the cocaine.\nGamble was unaware that Sykeo had agreed to work with the police as a confidential informant because of pending felony charges. As part of this work, Detective Marshbum of the Raleigh Police Department had asked Sykeo to purchase a \u201ctrafficking amount\u201d of cocaine, which equaled at least one ounce.\nGamble called Sykeo back, told Sykeo that he had located the cocaine, and asked Sykeo to pick up Gamble and defendant. Gamble, Sykeo, and defendant were supposed to meet Griffin and his partner, Maurice Teasley, in a Wendy\u2019s parking lot. On the way, at approximately 1:00 a.m., they met Detective Marshburn, who was working undercover, in a Papa Lou\u2019s restaurant parking lot. Defendant told Marshburn that they were going to meet the person with the cocaine at the Wendy\u2019s parking lot.\nDetective Marshburn, driving a separate car, followed Sykeo, Gamble, and defendant to a Hardee\u2019s parking lot. Defendant told Marshburn that the drug supplier was in the Wendy\u2019s parking lot across the street, and the supplier wanted defendant to bring him the money. Marshburn refused to give them the money for the drugs until either he or Sykeo had seen the cocaine. Gamble got in the car with Detective Marshburn while Sykeo and defendant drove across the street to the Wendy\u2019s parking lot.\nAfter a few minutes, Sykeo returned to the Hardee\u2019s parking lot without defendant. He reported that he had seen some cocaine, but it did not look like the full amount he had requested. Marshburn called off the deal and left the parking lot. Gamble got back into Sykeo\u2019s car, and they drove back across the street to the Wendy\u2019s parking lot. Griffin and Teasley were standing outside a car. As Gamble rolled down his window to speak to Griffin, police officers yelled \u201cFreeze!\u201d Gamble, Griffin, Teasley, and defendant were all arrested. Officers seized 53 grams of powder cocaine from Griffin.\nOn 6 February 2006, defendant was indicted on one count of conspiracy to traffic in cocaine by possession of 28 grams or more of cocaine, but less than 200 grams of cocaine. Defendant and Teasley were tried together beginning on 16 May 2006. The jury found defendant guilty of conspiracy to traffic in cocaine by possession on 17 May 2006, and Judge Orlando F. Hudson, Jr. sentenced defendant to a presumptive range sentence of 35 to 42 months imprisonment. Defendant timely appealed to this Court.\nI\nDefendant first contends that the trial court erred when instructing the jury as to the sole charge brought against defendant: conspiracy to commit trafficking in cocaine by possession. Defendant argues that because the trial court\u2019s instruction referred only to \u201cconspiracy to commit trafficking in cocaine\u201d without specifying \u201cby possession,\u201d it gave rise to the risk of a non-unanimous verdict. We disagree.\nDefendant and Teasley were tried in the same proceeding. After giving several standard jury instructions, the trial court instructed the jury on Teasley\u2019s charge of trafficking in cocaine by transportation:\nMembers of the jury, if you find from the evidence beyond a reasonable doubt that on or about the alleged date the defendant Maurice Teasley, acting either by himself or acting together with Saint Griffin, and that the defendant Maurice Teasley knowingly transported cocaine from one place to another, and that the amount transported was 28 grams or more but less than 200 grams, then it would be your duty to return a verdict of guilty of this offense.\nHowever, if you do not so find, or if you have a reasonable doubt, it would be your duty to return a verdict of not guilty.\nMembers of the jury, the defendant Maurice Teasley has been charged with feloniously conspiring to commit trafficking in cocaine by possessing 28 grams or more but less than 200 grams of cocaine.\nThe court went on to instruct the jury on the elements of conspiring to commit trafficking in cocaine by possession:\nFirst, that the defendant Maurice Teasley and Saint Griffin entered into an agreement.\nSecond, that the agreement was to commit trafficking in cocaine by possessing 28 grams or more but less than 200 grams of cocaine.\nAnd third, that the defendant and Saint Griffin intended that the agreement be carried out at the time it was made.\nThe court concluded the instruction on the conspiracy charge with respect to Teasley by stating:\nMembers of the jury, if you find from the evidence beyond a reasonable doubt that on or about the alleged date the defendant agreed with at least one person, and that the defendant and that person intended at the time of the agreement, that person being Saint James [sic], that it was made \u2014 that it would be carried out, it would be your duty to return a verdict of guilty.\nHowever, if you do not so find, or if you have a reasonable doubt as to one or more of these things, then it would be your duty to return a verdict of not guilty.\nImmediately following the instructions for Teasley, the trial court instructed the jury with respect to defendant:\nAnd members of the jury, if you further find from the evidence beyond a reasonable doubt that on or about the alleged date the defendant Temetria Davis agreed with at least one of these people, that being Jeffrey Gamble and Saint James [sic], to commit trafficking in cocaine and that the defendant and those persons intended at the time the agreement was made that it be carried out, then it would be your duty to return a verdict of guilty against this defendant.\nHowever, if you do not so find, or if you have a reasonable doubt at [sic] to one or more of these things, then it would be your duty to return a verdict of not guilty.\nAt the completion of the instructions, the court asked if counsel had any additions or corrections to the instructions. The State noted that the court referred to \u201cSaint James\u201d rather than \u201cSaint Griffin\u201d at one point, but there were no objections or requested corrections by either defense counsel.\nGenerally, when a defendant fails to object to errors committed by the trial court during the trial, he is precluded from raising the issue on appeal. N.C.R. App. P. 10(b)(1). This Court has recently reiterated, however, that \u201c[a] defendant\u2019s failure to object at trial to a possible violation of his right to a unanimous jury verdict does not waive his right to appeal on the issue, and it may be raised for the first time on appeal.\u201d State v. Mueller, 184 N.C. App. 553, 575-76, 647 S.E.2d 440, 456, cert. denied, 362 N.C. 91, \u2014 S.E.2d \u2014 (2007). See also State v. Ashe, 314 N.C. 28, 39, 331 S.E.2d 652, 659 (1985) (\u201cWhere, however, the error violates defendant\u2019s right to a trial by a jury of twelve, defendant\u2019s failure to object is not fatal to his right to raise the question on appeal.\u201d). We may, therefore, consider defendant\u2019s unanimity argument despite the lack of any objection at trial.\nUnder the North Carolina Constitution, \u201c[n]o person shall be convicted of any crime but by the unanimous verdict of a jury in open court.\u201d N.C. Const. art. I, \u00a7 24. See also N.C. Gen. Stat. \u00a7 15A-1237(b) (2005) (\u201cThe verdict must be unanimous, and must be returned by the jury in open court.\u201d). Issues of unanimity have usually arisen in the appellate courts when the trial court gave a disjunctive jury instruction. Although defendant relies upon disjunctive jury instruction cases, there was no disjunctive instruction in this case \u2014 the court did not provide the jury with alternative bases upon which it could find defendant guilty of conspiracy.\nIn asserting that the trial court\u2019s instruction was effectively a disjunctive instruction, defendant points to N.C. Gen. Stat. \u00a7 90-95(h)(3) (2005), which provides that a person is guilty of trafficking in cocaine if he \u201csells, manufactures, delivers, transports, or possesses 28 grams or more of cocaine.\u201d Defendant notes that trafficking in cocaine by sale, manufacture, delivery, transportation, and possession are \u201cseparate trafficking offenses for which a defendant may be separately convicted and punished.\u201d State v. Garcia, 111 N.C. App. 636, 641, 433 S.E.2d 187, 190 (1993). Defendant then argues that the court\u2019s instruction was necessarily disjunctive since the jury could have found defendant guilty on any one of these five bases.\nDefendant, however, overlooks the fact that the trial court, in instructing the jury on the conspiracy charge asserted against defendant, did not instruct the jury regarding these five different means of engaging in trafficking. Even though the trial court instructed that Teasley could be found guilty of trafficking on two different grounds, the instruction as to the conspiracy charge brought against defendant did not include alternative bases and,'therefore, there was no disjunctive instruction. Although the lack of specification regarding what activity constituted trafficking might give rise to problems other than a disjunctive instruction, such issues are not before us.\nEven if the instruction could be viewed as being disjunctive, defendant has also disregarded the fact that not all disjunctive instructions create an impermissible risk of a non-unanimous verdict. Our Supreme Court has identified two different categories of offenses, with disjunctive instructions violating the unanimity requirement only in one category. As explained by the Supreme Court in State v. Lyons, 330 N.C. 298, 302-03, 412 S.E.2d 308, 312 (1991) (citing State v. Diaz, 317 N.C. 545, 346 S.E.2d 488 (1986)), \u201ca disjunctive instruction, which allows the jury to find a defendant guilty if he commits either of two underlying acts, either of which is in itself a sep arate offense, is fatally ambiguous because it is impossible to determine whether the jury unanimously found that the defendant committed one particular offense.\u201d On the other hand, \u201cif the trial court merely instructs the jury disjunctively as to various alternative acts which will establish an element of the offense, the requirement of unanimity is satisfied.\u201d Id. at 303, 412 S.E.2d at 312 (citing State v. Hartness, 326 N.C. 561, 391 S.E.2d 177 (1990)).\nNeither defendant nor the State fully address whether this case falls within the Hartness or the Diaz line of authority. Although Diaz held that disjunctive instructions were impermissible with respect to a charge of trafficking with its five different types of offenses, this case involves a conspiracy to traffic. In State v. McLamb, 313 N.C. 572, 578, 330 S.E.2d 476, 480 (1985), our Supreme Court noted that it \u201chas long held that the charge of conspiracy need not describe the subject crime with legal and technical accuracy, the charge being the crime of conspiracy and not the charge of committing the subject crime.\u201d Applying this principle, the McLamb Court stated: \u201cAlthough we recognize that the sale and the delivery of controlled substances are separate offenses, we hold that the indictment in this case charges defendant with one offense: conspiring to sell or deliver \u2014 i.e. transfer \u2014 cocaine.\u201d Id. at 579, 330 S.E.2d at 481. As a result, a jury\u2019s verdict finding defendant guilty of \u201cconspiring to sell or deliver cocaine\u201d was not ambiguous. Id.\nMcLamb controls the resolution of this case. Since defendant was charged only with conspiracy to traffic in cocaine, the fact that the different methods of trafficking constitute separate offenses is immaterial. According to McLamb, the trial court instructed the jury as to a single offense \u2014 conspiracy to traffic \u2014 and, therefore, no risk of a non-unanimous verdict arose.\nIn any event, even if Diaz did apply, the existence of disjunctive instructions does not end the analysis. The court must then \u201cexamine the verdict, the charge, the jury instructions, and the evidence to determine whether any ambiguity as to unanimity has been removed.\u201d State v. Petty, 132 N.C. App. 453, 461-62, 512 S.E.2d 428, 434, appeal dismissed and disc. review denied, 350 N.C. 598, 537 S.E.2d 490 (1999).\nHere, defendant\u2019s counsel, in his closing argument, repeatedly identified the charge against defendant as conspiracy to traffic by possession. Then, during the jury instructions, the language of defendant\u2019s conspiracy instruction linked it to the immediately preceding conspiracy instruction relating to Teasley, which specified that the conspiracy involved an agreement \u201cto commit trafficking in cocaine by possessing 28 grams or more but less than 200 grams of cocaine.\u201d Moreover, the verdict form, which was reviewed with the jury by the trial judge, required that the jury decide whether defendant was \u201cGuilty of Conspiracy to Traffic in Cocaine by Possession of more than 28 grams but less than 200 grams of cocaine.\u201d While we observe that the better practice would be to have a separate instruction for defendant setting out each of the elements of the charge of conspiracy with respect to her, our review of the record indicates that any danger of a non-unanimous verdict was removed.\nII\nDefendant next contends that the trial court erred in denying her request for an instruction on the lesser included offense of conspiracy to commit simple possession. She argues that the instruction on the lesser offense was required because she was entrapped into committing the greater offense through manipulation by the police.\nDuring the charge conference, defense counsel stated:\n. . . Well, the last thing, your Honor \u2014 and I will admit that I don\u2019t have any case law to back me up on this.\nBut these kind of cases, as far as conspiracy goes, are unique in that the amount of drugs is an element of the crime. It\u2019s the element of the underlying crime which is trafficking in cocaine by possession of more than 28 grams but less than 200 grams.\nAnd in this particular case, the evidence is that Noy Sykeo, who was the informant, had been instructed to try to make a trafficking amount case, that he in fact was the one that sought two ounces of cocaine and that there was no evidence that Miss Davis had any sort of input at [sic] to that decision.\nAnd given the fact that it is \u2014 that that goal of the conspiracy originated in the mind of a government agent \u2014 that is, the informant in this case \u2014 I would ask the Court to consider in the discretion giving a lesser included offense of conspiracy to commit simple possession of cocaine.\nAnd I ask that, your Honor, just in the sense of equity and fundamental fairness. Because there are no other crimes that I can think of where the informant has such power.\nWe don\u2019t see in the criminal justice system cases where someone that\u2019s working for the government approaches someone and says let\u2019s go do five bank robberies or let\u2019s go do eight armed robberies. It is a very powerful position for the informant to be in, and it obviously \u2014 as you well know you are submitting this case to the jury that it does not take very much for the State to prove that someone is a co-conspirator.\nSo it would make a huge difference obviously in Miss Davis\u2019 exposure. All we are asking is that you consider submitting it to the jury so that they can make that determination and give whatever significance to the fact that Noy\u2019s \u2014 it was Noy\u2019s idea that it be two ounces.\nLet them attach the significance to that particular act. Thank you.\nSubsequently, the trial court denied defendant\u2019s request for an instruction on conspiracy to commit simple possession.\nDefendant argues at length in her brief on appeal that the concept of \u201csentencing entrapment\u201d required that the trial court instruct on the lesser included offense. \u201cSentencing 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 United States v. Si, 343 F.3d 1116, 1128 (9th Cir. 2003). Sentencing entrapment has been recognized by other states and in federal court. See Foster, 162 N.C. App. at 671-72, 592 S.E.2d at 264. This Court adopted the doctrine in Foster, 162 N.C. App. 665, 592 S.E.2d 259 (2004), but our decision was affirmed by an equally divided Supreme Court, 359 N.C. 179, 604 S.E.2d 913 (2004), thereby eliminating any precedential value.\nIn contrast to this case, however, the sentencing entrapment cases involve a request for an instruction on that defense. Foster, 162 N.C. App. at 671-72, 592 S.E.2d at 264. Here, defendant never requested an instruction on the sentencing entrapment defense at trial nor does she assign error on appeal to the trial court\u2019s failure to give the sentencing entrapment instruction. With respect to the request for an instruction on the lesser included offense, defendant cites no authority suggesting she was entitled to such an instruction in the absence of the sentencing entrapment defense being submitted to the jury. We, therefore, hold that the issue of sentencing entrapment is not properly before this Court.\nBased upon the evidence in the record, the trial court did not err in refusing to instruct as to conspiracy to commit simple possession. \u201cA defendant is entitled to an instruction on a lesser included offense if the evidence would permit a jury rationally to find him guilty of the lesser offense and acquit him of the greater.\u201d State v. Ledwell, 171 N.C. App. 328, 333, 614 S.E.2d 412, 415- (internal quotation marks omitted), disc. review denied, 360 N.C. 73, 622 S.E.2d 624 (2005). The evidence presented in this case supports only a finding that defendant conspired to possess a trafficking amount of cocaine. There was no evidence presented tending to show that defendant conspired to possess any lesser amount. The trial court was not, therefore, required to give an instruction on the lesser offense. .\nNo error.\nJudges CALABRIA and JACKSON concur.\n. Defendant did not assign plain error to the instruction and we are, therefore, precluded from considering any arguments relating to this instruction apart from the question of unanimity. See State v. Hamilton, 338 N.C. 193, 208, 449 S.E.2d 402, 411 (1994) (holding defendant waived appellate review because he failed to timely object to the jury charge at trial and failed to allege plain error on appeal).", "type": "majority", "author": "GEER, Judge." } ], "attorneys": [ "Attorney General Roy Cooper, by Assistant Attorney General Lisa C. Glover, for the State.", "Appellate Defender Staples Hughes, by Assistant Appellate Defenders Kristen L. Todd and Benjamin Dowling-Sendor, for defendant-appellant." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. TEMETRIA SHATORIE DAVIS, Defendant\nNo. COA06-1707\n(Filed 19 February 2008)\n1. Drugs\u2014 conspiracy to traffic cocaine \u2014 instructions\u2014omission of \u201cby possession\u201d \u2014 unanimity of verdict\nThe trial court\u2019s instruction in a prosecution for conspiracy to traffic in cocaine by possession that referred only to conspiracy to traffic in cocaine without specifying \u201cby possession\u201d did not create a risk of a nonunanimous verdict because it did not constitute a disjunctive instruction, and any danger of a nonunanimous verdict was removed when defense counsel\u2019s closing argument repeatedly identified the charge against defendant as conspiracy to traffic by possession, defendant\u2019s conspiracy instruction was linked to the preceding conspiracy instruction relating to a codefendant which specified that the conspiracy involved an agreement to traffic in cocaine by possession, and the verdict form required the jury to decide whether defendant was guilty of conspiracy to traffic in cocaine by possession of more than 28 grams but less than 200 grams of cocaine.\n2. Drugs\u2014 trafficking \u2014 instruction on lesser offense \u2014 not required\nThe trial court did not err by not giving an instruction on a lesser offense in a prosecution for conspiracy to traffic in cocaine. Although defendant argued that she was entrapped into the greater offense, sentencing entrapment was not raised at trial and was not properly before the appellate court, and the evidence supported an instruction only on the greater offense.\nAppeal by defendant from judgment entered 17 May 2006 by Judge Orlando F. Hudson, Jr. in Wake County Superior Court. Heard in the Court of Appeals 29 August 2007.\nAttorney General Roy Cooper, by Assistant Attorney General Lisa C. Glover, for the State.\nAppellate Defender Staples Hughes, by Assistant Appellate Defenders Kristen L. Todd and Benjamin Dowling-Sendor, for defendant-appellant." }, "file_name": "0735-01", "first_page_order": 765, "last_page_order": 774 }