{ "id": 12172977, "name": "STATE OF NORTH CAROLINA v. BRANDON MIKAL FOSTER, Defendant", "name_abbreviation": "State v. Foster", "decision_date": "2014-08-05", "docket_number": "No. COA13-1084", "first_page": "365", "last_page": "383", "citations": [ { "type": "official", "cite": "235 N.C. App. 365" } ], "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": "663 S.E.2d 462", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12641538 ], "weight": 6, "year": 2008, "pin_cites": [ { "page": "465" }, { "page": "464-65" }, { "page": "465" }, { "page": "465" }, { "page": "465" }, { "page": "465" } ], "opinion_index": 0, "case_paths": [ "/se2d/663/0462-01" ] }, { "cite": "133 S. Ct. 2009", "category": "reporters:federal", "reporter": "S. Ct.", "case_ids": [ 12697775, 12697776, 12697777, 12697778, 12697718, 12697788 ], "weight": 2, "year": 2013, "opinion_index": 0, "case_paths": [ "/us/569/0952-01", "/us/569/0952-02", "/us/569/0952-03", "/us/569/0952-04", "/us/569/0948-03", "/us/569/0952-15" ] }, { "cite": "185 L. Ed. 2d 876", "category": "reporters:federal", "reporter": "L. Ed. 2d", "case_ids": [ 12697796, 12697775, 12697776, 12697777, 12697778, 12697779, 12697780, 12697789 ], "year": 2013, "opinion_index": 0, "case_paths": [ "/us/569/0953-08", "/us/569/0952-01", "/us/569/0952-02", "/us/569/0952-03", "/us/569/0952-04", "/us/569/0952-05", "/us/569/0952-06", "/us/569/0953-07" ] }, { "cite": "638 S.E.2d 481", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12637377 ], "year": 2006, "pin_cites": [ { "page": "489" } ], "opinion_index": 0, "case_paths": [ "/se2d/638/0481-01" ] }, { "cite": "628 S.E.2d 735", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12635606 ], "year": 2006, "pin_cites": [ { "page": "748", "parenthetical": "quoting State v. Hennis, 323 N.C. 279, 285, 372 S.E.2d 523, 527 (1988)" } ], "opinion_index": 0, "case_paths": [ "/se2d/628/0735-01" ] }, { "cite": "191 N.C. App. 782", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 4158965 ], "year": 2008, "pin_cites": [ { "page": "786-87" } ], "opinion_index": 0, "case_paths": [ "/nc-app/191/0782-01" ] }, { "cite": "737 S.E.2d 377", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2012, "opinion_index": 0 }, { "cite": "366 N.C. 415", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4357920, 4358592, 4346594, 4348294, 4357682, 4359219, 4351413, 4354519 ], "year": 2012, "opinion_index": 0, "case_paths": [ "/nc/366/0415-05", "/nc/366/0415-04", "/nc/366/0415-01", "/nc/366/0415-08", "/nc/366/0415-02", "/nc/366/0415-07", "/nc/366/0415-03", "/nc/366/0415-06" ] }, { "cite": "731 S.E.2d 510", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2012, "pin_cites": [ { "page": "527-28" } ], "opinion_index": 0 }, { "cite": "743 S.E.2d 205", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 2013, "opinion_index": 0 }, { "cite": "366 N.C. 594", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4352578, 4347811, 4350703, 4357937, 4361494 ], "year": 2013, "opinion_index": 0, "case_paths": [ "/nc/366/0594-03", "/nc/366/0594-02", "/nc/366/0594-01", "/nc/366/0594-04", "/nc/366/0594-05" ] }, { "cite": "737 S.E.2d 452", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 4, "year": 2013, "pin_cites": [ { "page": "470" }, { "page": "470" }, { "page": "470" } ], "opinion_index": 0 }, { "cite": "843 F.2d 25", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 10542279 ], "weight": 2, "year": 1988, "pin_cites": [ { "page": "29" } ], "opinion_index": 0, "case_paths": [ "/f2d/843/0025-01" ] }, { "cite": "98 L. Ed. 2d. 798", "category": "reporters:federal", "reporter": "L. Ed. 2d", "case_ids": [ 602206, 11300959 ], "year": 1988, "opinion_index": 0, "case_paths": [ "/us/484/0400-01", "/us/347/0396-01" ] }, { "cite": "484 U.S. 400", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 602206 ], "weight": 2, "year": 1988, "opinion_index": 0, "case_paths": [ "/us/484/0400-01" ] }, { "cite": "753 S.E.2d 783", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2014, "opinion_index": 0 }, { "cite": "747 S.E.2d 398", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 10, "year": 2013, "pin_cites": [ { "page": "414" }, { "page": "403" }, { "page": "413" }, { "page": "413" }, { "page": "414" }, { "page": "415" }, { "page": "415" } ], "opinion_index": 0 }, { "cite": "312 S.E.2d 526", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1984, "pin_cites": [ { "page": "527", "parenthetical": "applying common law notions of fairness and holding that discovery rule applicable to State is equally applicable to defendant" } ], "opinion_index": 0 }, { "cite": "67 N.C. App. 181", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8525972 ], "year": 1984, "pin_cites": [ { "page": "183", "parenthetical": "applying common law notions of fairness and holding that discovery rule applicable to State is equally applicable to defendant" } ], "opinion_index": 0, "case_paths": [ "/nc-app/67/0181-01" ] }, { "cite": "655 S.E.2d 355", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2008, "opinion_index": 0 }, { "cite": "362 N.C. 150", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4150705 ], "year": 2008, "opinion_index": 0, "case_paths": [ "/nc/362/0150-01" ] }, { "cite": "180 N.C. App. 514", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8243537 ], "year": 2006, "pin_cites": [ { "page": "525" } ], "opinion_index": 0, "case_paths": [ "/nc-app/180/0514-01" ] }, { "cite": "231 S.E.2d 585", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1977, "pin_cites": [ { "page": "588" } ], "opinion_index": 0 }, { "cite": "291 N.C. 687", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8558950 ], "year": 1977, "pin_cites": [ { "page": "692" } ], "opinion_index": 0, "case_paths": [ "/nc/291/0687-01" ] }, { "cite": "372 S.E.2d 523", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1988, "pin_cites": [ { "page": "527" } ], "opinion_index": 0 }, { "cite": "323 N.C. 279", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2562603 ], "year": 1988, "pin_cites": [ { "page": "285" } ], "opinion_index": 0, "case_paths": [ "/nc/323/0279-01" ] }, { "cite": "360 N.C. 400", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 3789392 ], "year": 2006, "pin_cites": [ { "page": "419", "parenthetical": "quoting State v. Hennis, 323 N.C. 279, 285, 372 S.E.2d 523, 527 (1988)" } ], "opinion_index": 0, "case_paths": [ "/nc/360/0400-01" ] }, { "cite": "407 S.E.2d 805", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1991, "pin_cites": [ { "page": "810" } ], "opinion_index": 0 }, { "cite": "329 N.C. 709", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2556521 ], "year": 1991, "pin_cites": [ { "page": "716" } ], "opinion_index": 0, "case_paths": [ "/nc/329/0709-01" ] }, { "cite": "198 S.E.2d 759", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1973, "pin_cites": [ { "page": "760", "parenthetical": "undercover agent went to defendant's apartment to purchase drugs that defendant had promised to sell to agent previous day, and defendant told agent after transaction that \" '[a]nytime you need anything, an ounce or a lid or a pound, I can get it for you' \"" } ], "opinion_index": 0 }, { "cite": "19 N.C. App. 375", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8553515 ], "weight": 2, "year": 1973, "pin_cites": [ { "page": "376" } ], "opinion_index": 0, "case_paths": [ "/nc-app/19/0375-01" ] }, { "cite": "234 S.E.2d 417", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1977, "pin_cites": [ { "page": "417", "parenthetical": "undercover officer went to defendant's house and asked to buy drugs, and defendant stated that he knew where he could get some marijuana and was able to retrieve drugs in 20 minutes" } ], "opinion_index": 0 }, { "cite": "33 N.C. App. 223", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8548811 ], "weight": 2, "year": 1977, "pin_cites": [ { "page": "223" } ], "opinion_index": 0, "case_paths": [ "/nc-app/33/0223-01" ] }, { "cite": "235 S.E.2d 873", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1977, "pin_cites": [ { "page": "875", "parenthetical": "evidence established that undercover agent \"worked herself into the drug traffic society and purchased drugs from the defendant\"" } ], "opinion_index": 0 }, { "cite": "33 N.C. App. 611", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8551446 ], "weight": 2, "year": 1977, "pin_cites": [ { "page": "614" } ], "opinion_index": 0, "case_paths": [ "/nc-app/33/0611-01" ] }, { "cite": "569 S.E.2d 24", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 10, "year": 2002, "pin_cites": [ { "page": "29" }, { "page": "30" }, { "page": "100-01" }, { "page": "30" }, { "page": "100" }, { "page": "30" }, { "page": "101-02" }, { "page": "30" } ], "opinion_index": 0 }, { "cite": "153 N.C. App. 91", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9248713 ], "year": 2002, "pin_cites": [ { "page": "100" } ], "opinion_index": 0, "case_paths": [ "/nc-app/153/0091-01" ] }, { "cite": "215 S.E.2d 589", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 5, "year": 1975, "pin_cites": [ { "page": "597-98" }, { "page": "597" }, { "page": "591" }, { "page": "591" }, { "page": "597-98" } ], "opinion_index": 0 }, { "cite": "288 N.C. 19", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8564626 ], "year": 1975, "pin_cites": [ { "page": "32-33" } ], "opinion_index": 0, "case_paths": [ "/nc/288/0019-01" ] }, { "cite": "307 S.E.2d 436", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 6, "year": 1983, "pin_cites": [ { "page": "437" }, { "page": "436" }, { "page": "437" }, { "page": "437" } ], "opinion_index": 0 }, { "cite": "64 N.C. App. 301", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8526703 ], "weight": 2, "year": 1983, "pin_cites": [ { "page": "303" }, { "page": "302" } ], "opinion_index": 0, "case_paths": [ "/nc-app/64/0301-01" ] }, { "cite": "334 S.E.2d 459", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1985, "pin_cites": [ { "page": "462" }, { "page": "460", "parenthetical": "evidence was presented that defendant told undercover agent that \"he had been dealing drugs for sixteen years and had a reputation in the community as a 'fair dealer who gave a good product at a fair price' \"" } ], "opinion_index": 0 }, { "cite": "77 N.C. App. 61", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8520457 ], "weight": 2, "year": 1985, "pin_cites": [ { "page": "67" }, { "page": "63" } ], "opinion_index": 0, "case_paths": [ "/nc-app/77/0061-01" ] }, { "cite": "296 S.E.2d 433", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1982, "pin_cites": [ { "page": "449" } ], "opinion_index": 0 }, { "cite": "307 N.C. 1", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8560498 ], "year": 1982, "pin_cites": [ { "page": "30" } ], "opinion_index": 0, "case_paths": [ "/nc/307/0001-01" ] }, { "cite": "485 S.E.2d 329", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1997, "pin_cites": [ { "page": "331" } ], "opinion_index": 0 }, { "cite": "126 N.C. App. 415", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11711037 ], "year": 1997, "pin_cites": [ { "page": "417-18" } ], "opinion_index": 0, "case_paths": [ "/nc-app/126/0415-01" ] }, { "cite": "543 S.E.2d 160", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 2001, "pin_cites": [ { "page": "165", "parenthetical": "quoting State v. Davis, 126 N.C. App. 415, 417-18, 485 S.E.2d 329, 331 (1997)" }, { "page": "162", "parenthetical": "sheriff's office received information from informant that defendant was selling drugs from his apartment and defendant was a heroin addict with extensive criminal history" } ], "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": "quoting State v. Davis, 126 N.C. App. 415, 417-18, 485 S.E.2d 329, 331 (1997)" }, { "page": "699-700" } ], "opinion_index": 0, "case_paths": [ "/nc-app/141/0698-01" ] } ], "analysis": { "cardinality": 1442, "char_count": 46551, "ocr_confidence": 0.72, "pagerank": { "raw": 5.929295359159149e-08, "percentile": 0.3702455239668413 }, "sha256": "dfe4b1f03902a66efc2c31a931bbf5df9c669816b83974681a89e8c1b87df88c", "simhash": "1:8b79f36054e34cde", "word_count": 7664 }, "last_updated": "2023-07-14T16:54:11.341648+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges STEPHENS and ERVIN concur." ], "parties": [ "STATE OF NORTH CAROLINA v. BRANDON MIKAL FOSTER, Defendant" ], "opinions": [ { "text": "GEER, Judge.\nDefendant Brandon Mikal Foster appeals his conviction of delivery of cocaine. Defendant argues on appeal that the trial court erred in refusing to instruct the jury on the defense of entrapment. Based on defendant\u2019s evidence that an undercover officer tricked defendant into believing that the officer was romantically interested in defendant in order to persuade defendant to obtain cocaine for him, that defendant had no predisposition to commit a drug offense such as delivering cocaine, and that the criminal design originated solely with the officer, we hold that the trial court erred in failing to instruct the jury on the defense of entrapment.\nThe trial court, however, indicated that it was also denying the request for an instruction as a sanction under N.C. Gen. Stat. \u00a7 15A-910(a) for failure to provide \u201cspecific information as to the nature and extent of the defense\u201d as required by N.C. Gen. Stat. \u00a7 15A-905(c)(l)(b) (2013). Because the trial court made no findings of fact to justify imposition of such a harsh sanction, and the State has not shown that it suffered any prejudice from the lack of detail in the notice filed eight months prior to trial, we hold that the trial court abused its discretion in precluding the use of the entrapment defense as a sanction. Consequently, defendant is entitled to a new trial.\nFacts\nThe State\u2019s evidence tended to show the following facts. On 22 June 2011, Officer Thomas Wishon, Officer Daniel Bignall, and Detective Hefner of the Charlotte-Mecklenburg Police Department (\u201cCMPD\u201d) were working undercover at Chasers, a male strip club in Charlotte, North Carolina, investigating a complaint of sexually-oriented business and narcotics violations. Defendant was working as a dancer at the club that night, and there were only a few patrons at the club. Defendant, whose stage name was Thunder, and another dancer with the stage name Mercury approached the officers after they finished dancing. Mercury and defendant gave lap dances to Officer Bignall and Detective Hefner.\nOfficer Wishon engaged in small talk with defendant throughout the evening. Officer Wishon admitted that he tipped defendant and flirted, maintained eye contact, and joked with defendant. Towards the end of the night, Officer Wishon asked defendant if he had a \u201chookup\u201d and indicated that he would like to buy some cocaine. Defendant stated that he had a \u201cconnect.\u201d Officer Wishon asked defendant for his phone number and told defendant that he was going to a friend\u2019s party but would be back after the party. Before leaving, Officer Wishon gave defendant a goodbye hug.\nLater that night, Officer Wishon received three text messages from defendant. The first stated, \u201c \u2018You have to come back. You never got a lap dance. LOL.:)\u2019 \u201d The second text stated, \u201c \u2018I can get what you wanted if you need it. Let me know quick. \u2019 \u201d The third text stated, \u201c \u2018My friend needs to know what to get if your [sic] still wanting that.\u2019 \u201d Officer Wishon did not respond to these text messages or return to the nightclub that night.\nOfficer Wishon did not text defendant until 29 June 2011,. when he asked defendant if he was able to \u201chook him up.\u201d Officer Wishon and defendant exchanged several text messages discussing the details of the deal. They arranged for Officer Wishon to go to Chasers the following day to make the purchase.\nThe next day, 30 June 2011, Officer Wishon went to Chasers where he and other undercover officers played pool with defendant until defendant\u2019s \u201csource\u201d arrived. When defendant\u2019s source, later identified as Paul Peterson, walked in, defendant said to Officer Wishon: \u201cOh. He\u2019s here. Let me get your money.\u201d Officer Wishon handed defendant $185.00 and watched defendant follow Mr. Peterson into the bathroom. When defendant returned, he had a plastic baggy of cocaine tucked into his underwear on his hip. He asked Officer Wishon to be \u201cfrisky\u201d with him. Officer Wishon told defendant that he was making him uncomfortable, but he, nevertheless, retrieved the plastic baggy of cocaine from defendant\u2019s hip. Shortly thereafter, defendant was arrested.\nAfter defendant was read his rights, he agreed to talk with Officer Stephanie White of the CMPD. Defendant told Officer White that he met Mr. Peterson in the bathroom, took the $185.00 given to him by Officer Wishon and exchanged it for the cocaine, put the cocaine in his underwear and Officer Wishon retrieved it. Defendant also told Officer White that Officer Wishon had offered him $100.00 to broker the drug deal. Officer White testified that, generally, undercover officers will only offer someone a cigarette or up to $5.00 at most to broker a drug deal and that defendant\u2019s claim that he was offered $100.00 was a lie.\nOn 11 July 2011, defendant was indicted for sale of a controlled substance, possession with intent to sell or deliver a controlled substance, and delivery of a controlled substance. On 2 February 2012, defendant filed a notice of an intent to assert the defense of entrapment. The notice stated that \u201cundercover CMPD Officer Wishon, acting on behalf of Charlotte Mecklenburg Police Department induced Brandon M. Foster to obtain cocaine, a crime not contemplated by Brandon M. Foster.\u201d\nAt a pretrial hearing on 8 October 2012, the State made a motion in limine to bar defendant from asserting the defense of entrapment on the grounds that the notice did not \u201ccontain specific information as to the nature and the extent of this defense\u201d as required by N.C. Gen. Stat. \u00a7 15A-905(c). The trial court initially denied the State\u2019s motion and then asked defendant to describe more specifically what constituted entrapment in this case. After defendant gave a proffer of the evidence he intended to present to support the defense, the trial court again denied the State\u2019s motion. The trial began the following day.\nDefendant testified in his own defense on the second day of trial. He testified that on the night of 22 June 2011, he believed that Officer Wishon was interested in him. Officer Wishon initiated a conversation with defendant by asking him if he was single and asking other personal information such as what he liked to do besides dancing. Defendant told Officer Wishon that he was in school and that he danced to pay the bills. He was intrigued by Officer Wishon, noting that Officer Wishon \u201cnever mentioned the fact that I was sitting there in boy shorts or that I am half naked\u201d and instead kept the conversation intellectual and sincere.\nBy the end of the night, defendant had given Officer Wishon his real name and telephone number, information that he normally did not give guests at the club. At one point, defendant commented that he thought Officer Wishon liked Mercury. Officer Wishon responded that he was into defendant and that is why he wanted defendant\u2019s number and not Mercury\u2019s. When Officer Wishon left, he gave defendant a goodbye hug.\nAt one point in the night, after having a one-on-one conversation with defendant, Officer Wishon asked both defendant and Mercuiy about getting \u201cstraight,\u201d which is street language for cocaine. Defendant asked \u201c[w]hat are you talking about?\u201d Officer Wishon clarified that he was referring to cocaine. Defendant stated that he did not do drugs. However, both defendant and Mercury told Officer Wishon that they would ask around for him.\nDefendant testified that he did ask around, but did not find anything that night. He did not speak to Officer Wishon about drugs again before the officers left. Although defendant texted Officer Wishon later about the lap dances, he denied sending the second and third text messages. The last communication between the two of them that night was Officer Wishon\u2019s response stating that he was not coming back to the club that night.\nDefendant did not hear from Officer Wishon again until one week later when he texted defendant, \u201cAre you working tonight?\u201d By that time, defendant had deleted Officer Wishon\u2019s number from his phone, thinking that Officer Wishon had lost interest in him. Defendant\u2019s first response, therefore, was to ask who was texting him. When defendant found out it was Officer Wishon, he became excited and giddy. They texted back and forth a few times, but when Officer Wishon turned the conversation back to narcotics, defendant slowed down his responses. Referring to cocaine, Officer Wishon asked defendant if he had ever found what Officer Wishon had asked for the night of 22 June 2011. Defendant told him he had not. Officer Wishon asked defendant if he could find him drugs, and defendant told him the same thing he had told him the first night - that he could ask around.\nDefendant told Officer Wishon to contact Eric, a customer of defendant\u2019s. Defendant began texting between both Officer Wishon and Eric, relaying the questions of Officer Wishon to Eric, and forwarding Eric\u2019s responses to Officer Wishon. Officer Wishon told defendant he was planning on going to Chasers the following night. Defendant forwarded Officer Wishon a text from Eric stating that the drug dealer was supposed to be at Chasers that night as well.\nOn the night of 30 June 2011, defendant was excited to see Officer Wishon at Chasers and went over to talk to him after he had finished a set. It was a busy Friday night, so defendant was unable to talk as much as he had been able to talk on the first night. Instead, the conversations were centered on Officer Wishon\u2019s questions about the dealer and whether he was there or not - Officer Wishon would go to the bar and tip defendant and ask defendant when the drug dealer would arrive. He tipped defendant $10.00.\nEric was at the bar and signaled to defendant when the drug dealer, Paul Peterson, had arrived. Defendant recognized the drug dealer as \u201cUncle Paul,\u201d a man who frequented the bar, but he did not know him personally. Defendant told Officer Wishon that the drug dealer was at the club, and Officer Wishon asked defendant to get the cocaine for him. Defendant took the money from Officer Wishon, followed Mr. Peterson to the bathroom, and returned with the cocaine. He put the drugs in his underwear and asked Officer Wishon to retrieve the drugs because he did not want to touch the drugs himself.\nWhen asked why he got the drugs for Officer Wishon, defendant replied: \u201cI was doing what I could to impress him. He seemed to like me. I liked him, so I tried to do that for him.\u201d He also explained, \u201cI had a crush. Having someone continuously ask you for the same thing makes you feel persuaded to do it.\u201d\nDefendant testified that in one of the texts from Officer Wishon, he was told he would be given $100.00 for setting everything up. However, defendant did not state that money was what motivated him to help Officer Wishon. Instead, defendant explained:\nI mean, I just I liked him. In my life and my organization at that profession I was doing, I didn\u2019t get a lot of chances to meet decent people to actually date or who could possibly be a possible date.\nWhen I found someone who I was really, really interested in and I felt like they were interested in me, I took a chance basically.\nI didn\u2019t per se want to do it with the narcotics or be involved in it. I felt like I was pushed more to get it or else the interest would have been lost on his part in me.\nDefendant felt that Officer Wishon took advantage of both his emotions and his financial situation. He had told Officer Wishon that he lived with his mother and that he was working to support himself and his mother and pay for school. He had never gotten in trouble before and does not use or sell drugs.\nAt the close of all the evidence, the State again argued that it was not given notice of the nature and extent of defendant\u2019s defense of entrapment until trial and asked that it be given until the following morning to address the issue of entrapment. In response, defense counsel asserted that defendant filed his intent to use the entrapment defense on 2 February 2012, 240 days prior to trial.\nThe trial court then indicated that \u201c[w]hat the Court is going to hear with regard to the entrapment defense is whether or not that defense should go to the jury.\u201d The court granted the State\u2019s request that it wait to hear the parties\u2019 arguments until the following morning. Specifically, the trial court stated, \u201cIn the morning at 9:30, [the court will hear the parties] about whether the issue of entrapment goes to the jury, based on the evidence before the Court.\u201d Defense counsel responded: \u201cSo I may be clear what the State is asking and what the Court is deciding - we are not revisiting the issue of the motion in limine. We are objecting. There is sufficient evidence to present the testimony to submit to a jury or its consideration.\u201d\nThe following morning, after hearing the parties\u2019 arguments regarding the sufficiency of the evidence presented on entrapment, the trial court concluded that there was not sufficient evidence to instruct the jury on the entrapment defense. Although the parties had not addressed the adequacy of the notice, the trial court also added:\nIn addition, the Court having given further thought to the motion of State raises the issue of notice to the state [sic] of the intent to use the defense of entrapment, the Court finds that the defendant failed to comply with the statute; that the defendant did not give them specifics as to the basis of the defense.\nSo in addition to the Court\u2019s rul[ing] finding that the defendant failed to present sufficient or competent evidence of entrapment, the defendant further failed to notify the State in accordance with the statute of its intent to raise the defense of entrapment. The Court will not submit the issue of entrapment to the jury.\nThe jury found defendant guilty of delivery of cocaine and not guilty of the other two offenses. The trial court sentenced defendant to a presumptive-range term of five to six months imprisonment. The court suspended defendant\u2019s sentence and placed defendant on supervised probation for 12 months. Defendant timely appealed to this Court.\nDiscussion\nDefendant first argues that the trial court erred in concluding that the evidence was insufficient to warrant submission of the defense of entrapment to the jury.\n\u201cEntrapment is the inducement of a person to commit a criminal offense not contemplated by that person, for the mere purpose of instituting a criminal action against him. To establish the defense of entrapment, it must be shown that (1) law enforcement officers or their agents engaged in acts of persuasion, trickery or fraud to induce the defendant to commit a crime, and (2) the criminal design originated in the minds of those officials, rather than with the defendant. The defense is not available to a defendant who was predisposed to commit the crime charged absent the inducement of law enforcement officials. The defendant has the burden of proving entrapment to the satisfaction of the jury.\u201d\nState v. Thompson, 141 N.C. App. 698, 706, 543 S.E.2d 160, 165 (2001) (quoting State v. Davis, 126 N.C. App. 415, 417-18, 485 S.E.2d 329, 331 (1997)).\n\u201cThe fact that governmental officials merely afford opportunities or facilities for the commission of the offense is, standing alone, not enough to give rise to the defense of entrapment.\u201d State v. Hageman, 307 N.C. 1, 30, 296 S.E.2d 433, 449 (1982). Instead, the defendant must present evidence that the law enforcement officers or their agents engaged in \u201cacts of persuasion, trickery, or fraud[.]\u201d State v. Martin, 77 N.C. App. 61, 67, 334 S.E.2d 459, 462 (1985). \u201cA defendant is entitled to a jury instruction on entrapment whenever the defense is supported by 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).\nIn State v. Stanley, 288 N.C. 19, 32-33, 215 S.E.2d 589, 597-98 (1975), our Supreme Court held that the evidence presented at trial established that the defendant was entrapped as a matter of law. There, the undisputed evidence showed that an undercover officer, based on false representations, befriended the teenage defendant and became a \u201cbig brother\u201d figure to him. Id. at 32, 215 S.E.2d at 597. The officer repeatedly asked the defendant where he could find and buy drugs, persuaded the defendant to make more than one drug buy for him, and supplied the money for the purchases. Id. at 21-22, 215 S.E.2d at 591. On two occasions prior to his arrest for possession of a controlled substance, the defendant purchased drugs that turned out to be counterfeit because the defendant did not know the difference. Id. at 22, 215 S.E.2d at 591. The Supreme Court held that this evidence demonstrated that the criminal design originated with the officer, and there was not any evidence indicating that the defendant was predisposed to engage in possession or distribution of drugs. Id. at 32-33, 215 S.E.2d at 597-98.\nEven where the evidence does not establish entrapment as a matter of law, \u201c[i]f defendant\u2019s evidence creates an issue of fact as to entrapment, then the jury must be instructed on the defense of entrapment.\u201d State v. Branham, 153 N.C. App. 91, 100, 569 S.E.2d 24, 29 (2002). In Branham, the defendant testified that two days before he was arrested, an informant, who was the older brother of a girl defendant knew, asked defendant if he \u201c \u2018could get him a kilo of Cocaine,\u2019 \u201d and the defendant responded that he had no idea where to get it. Id., 569 S.E.2d at 30. The next day, the informant repeatedly asked the defendant for LSD, and persisted until the defendant agreed to locate the LSD requested. Id. Although the defendant offered to drive the informant to the seller so that the informant could make the purchase himself, the defendant ultimately agreed to make the purchase after the informant offered the defendant an additional $100.00. Id. at 100-01, 569 S.E.2d at 30.\nThis Court held that the trial court properly instructed the jury on the issue of entrapment since \u201cthere was evidence that [an informant] and the officers initiated the offense, but also evidence from which the jury could have inferred that defendant was predisposed to sell LSD.\u201d Id. at 100, 569 S.E.2d at 30. Specifically, \u201c[defendant\u2019s testimony that [the informant] repeatedly pushed defendant to obtain drugs for him, that he attempted to get [the informant] to make the purchase himself, and that he had never before been involved in any drug sales of this quantity\u201d was sufficient to raise an issue of fact as to inducement and lack of predisposition to commit the offenses, despite the State\u2019s evidence to the contrary. Id. at 101-02, 569 S.E.2d at 30.\nIn Jamerson, the defendant presented evidence that an undercover officer and an informant came to the defendant\u2019s apartment and asked the defendant to sell them some drugs, but the defendant said that he did not have any. 64 N.C. App. at 302, 307 S.E.2d at 436. When the officer and informant returned a few hours later and the defendant still did not have any drugs and had not made any attempt to locate any drugs, the officer repeatedly told the defendant that he desperately needed drugs because he was an addict. Id., 307 S.E.2d at 437. After the informant located a person who would sell drugs and offered the defendant $15.00 to make the purchase, the informant drove the defendant to the location and the defendant made the purchase with money provided by the officer. Id. This Court held that this evidence was sufficient to require submission of a jury instruction on entrapment. Id. at 303, 307 S.E.2d at 437.\nWe believe that the facts of this case are analogous to Stanley, Branham, and Jamerson. Defendant\u2019s evidence and Officer Wishon\u2019s own testimony tended to show that Officer Wishon falsely led defendant to believe that he was romantically interested in defendant by asking him personal questions about defendant\u2019s life, maintaining eye contact, flirting, joking \"with him throughout the evening, asking for defendant\u2019s phone number, saying that he was \u201cinto\u201d defendant rather than another dancer, and giving defendant a hug goodbye the first night they met.\nThe undisputed evidence shows that Officer Wishon, who was investigating narcotics violations, initiated the conversation regarding drugs by asking defendant where he could get \u201cstraight,\u201d a street term for cocaine that defendant did not understand. After Officer Wishon clarified that he was referring to cocaine, defendant told Officer Wishon that he did not do drugs but that he would ask around. Although the State presented evidence that defendant, later that evening, renewed the conversation about his obtaining cocaine for Officer Wishon in two text messages defendant sent, defendant admitted sending only a flirtatious text message that did not mention drugs and denied sending the other two text messages. For purposes of the entrapment issue, we must assume that defendant\u2019s testimony is true.\nConsequently, viewing the evidence in the light most favorable to defendant, there was no further discussion of drugs after defendant said simply that he would ask around until, a week later, Officer Wishon texted defendant about whether he was working that night. In the meantime, defendant had deleted Officer Wishon\u2019s phone number from his phone, an act a jury could find was consistent with someone focused on a romantic interest rather than a potential drug client. The initial texts a week later were not about drugs, but Officer Wishon then again asked defendant about obtaining drugs for him. Defendant ultimately did not himself act as an intermediary with the drug dealer, but identified one of his clients who could assist Officer Wishon with connecting with the drug dealer - evidence which suggests that defendant did not have a predisposition to engage in drug dealing.\nIn addition, defendant testified that he only agreed to help Officer Wishon obtain the drugs because he was romantically interested in Officer Wishon, and, after being continuously asked about the drugs, \u201cfelt like [he] was pushed more to get it or else the interest would have been lost on [Officer Wishon\u2019s] part in [defendant].\u201d The record also contains no evidence that defendant had previously used drugs, engaged in drug dealing, or was aware of common street lingo for drugs - indeed, the record contains no evidence of any other behavior on defendant\u2019s part that was suggestive of a predisposition to help supply someone with drugs.\nIn sum, viewed in a light most favorable to defendant, Officer Wishon\u2019s flirtatious behavior towards defendant combined with his persistent requests for cocaine persuaded defendant to obtain the cocaine for Officer Wishon. Further, defendant\u2019s evidence would permit the jury to find that the idea for the crime (delivery of cocaine) originated with and was pursued solely by Officer Wishon, with no indication that defendant had any predisposition to participate in drug transactions.\nThus, as in Stanley, Branham, and Jamerson, the undercover officer initiated the conversation about drugs, persisted in seeking drugs, and provided defendant with the money for the exchange. Moreover, Officer Wishon\u2019s acts of inducement, like those of the undercover officer in Stanley, involved emotional manipulation including creating a false relationship and then taking advantage of the defendant\u2019s desire to maintain that relationship. Finally, as in Stanley, there was no evidence of predisposition.\nThe State, nevertheless, argues that Officer Wishon merely afforded defendant the opportunity to commit the offense, arguing that the facts of this case are analogous to Thompson, Martin, State v. Rowe, 33 N.C. App. 611, 235 S.E.2d 873 (1977), State v. Booker, 33 N.C. App. 223, 234 S.E.2d 417 (1977), and State v. Stanback, 19 N.C. App. 375, 198 S.E.2d 759 (1973), decisions holding that the evidence was insufficient to show that the defendant was entrapped. We disagree.\nIn each of the cases cited by the State, the evidence established that the undercover agent had reason to believe the defendant was a drug dealer, or the defendant was otherwise specifically targeted by the undercover agent because the agent had reason to believe the defendant could obtain drugs. See Martin, 77 N.C. App. at 63, 334 S.E.2d at 460 (evidence was presented that defendant told undercover agent that \u201che had been dealing drugs for sixteen years and had a reputation in the community as a \u2018fair dealer who gave a good product at a fair price\u2019 \u201d); Thompson, 141 N.C. App. at 699-700, 543 S.E.2d at 162 (sheriff\u2019s office received information from informant that defendant was selling drugs from his apartment and defendant was a heroin addict with extensive criminal history); Booker, 33 N.C. App. at 223, 234 S.E.2d at 417 (undercover officer went to defendant\u2019s house and asked to buy drugs, and defendant stated that he knew where he could get some marijuana and was able to retrieve drugs in 20 minutes); Rowe, 33 N.C. App. at 614, 235 S.E.2d at 875 (evidence established that undercover agent \u201cworked herself into the drug traffic society and purchased drugs from the defendant\u201d); Stanback, 19 N.C. App. at 376, 198 S.E.2d at 760 (undercover agent went to defendant\u2019s apartment to purchase drugs that defendant had promised to sell to agent previous day, and defendant told agent after transaction that \u201c \u2018[a]nytime you need anything, an ounce or a lid or a pound, I can get it for you\u2019 \u201d).\nWhile the State argues that this case is similar to the decisions upon which it relies because defendant did not hesitate before telling Officer Wishon that he would ask around about drugs and did so in a short period of time, in the cases the State cites, any evidence tending to show that the defendant needed little urging before agreeing to the undercover agent\u2019s request was consistent with the totality of the evidence suggesting that the defendant was, in fact, a drug dealer. When, in this case, the evidence is viewed in the light most favorable to defendant, there is no suggestion that defendant was a drug dealer, had any criminal history, or was in any way predisposed to commit the offense of delivery of cocaine independent of government influence.\nGiven the lack of evidence regarding defendant\u2019s criminal predisposition, any evidence that defendant required little urging before agreeing to ask around for drugs could be attributed by a jury to defendant\u2019s romantic interest in Officer Wishon and a desire to impress him. Thus, the evidence that the State points to as showing that defendant was predisposed to commit the crime is consistent with defendant\u2019s theory of the entrapment defense and merely creates an issue of fact for the jury to decide. We therefore hold that defendant presented sufficient evidence of the essential elements of entrapment, and the trial court erred in refusing to instruct the jury based on a lack of evidence.\nThe question remains whether the trial court\u2019s denial of defendant\u2019s request for an entrapment instruction may be upheld as a sanction for defendant\u2019s failure to provide adequate notice of his defense. N.C. Gen. Stat. \u00a7 15A-905(c)(l)(b) specifies that a defendant must provide the State with notice of its intent to offer at trial the defense of entrapment and that the notice must \u201ccontain specific information as to the nature and extent of the defense.\u201d The trial court, in this case, found generally that defendant violated N.C. Gen. Stat. \u00a7 15A-905(c)(l)(b) because \u201cdefendant did not give [the State] specifics as to the basis of the defense.\u201d The trial court then used this violation as an additional basis for its refusal to submit the issue of entrapment to the jury.\nIf a trial court determines that a defendant has violated N.C. Gen. Stat. \u00a7 15A-905(c)(l)(b), it may impose any of the following sanctions on the defendant:\n(1) Order the party to permit the discovery or inspection, or\n(2) Grant a continuance or recess, or\n(3) Prohibit the party from introducing evidence not disclosed, or\n(3a) Declare a mistrial, or\n(3b) Dismiss the charge, with or without prejudice, or\n(4) Enter other appropriate orders.\nN.C. Gen. Stat. \u00a7 15A-910(a) (2013).\nHowever, \u201c[p]rior to finding any sanctions appropriate, the court shall consider both the materiality of the subject matter and the totality of the circumstances surrounding an alleged failure to comply with this Article or an order issued pursuant to this Article.\u201d N.C. Gen. Stat. \u00a7 15A-910(b). \u201cIf the court imposes any sanction, it must make specific findings justifying the imposed sanction.\u201d N.C. Gen. Stat. \u00a7 15A-910(d).\n\u201cWhether a party has complied with discovery and what sanctions, if any, should be imposed are questions addressed to the sound discretion of the trial court.\u201d State v. Tucker, 329 N.C. 709, 716, 407 S.E.2d 805, 810 (1991). \u201c \u2018Abuse of discretion results where the court\u2019s ruling is manifestly unsupported by reason or is so arbitrary that it could not have been the result of a reasoned decision.\u2019 \u201d State v. Elliot, 360 N.C. 400, 419, 628 S.E.2d 735, 748 (2006) (quoting State v. Hennis, 323 N.C. 279, 285, 372 S.E.2d 523, 527 (1988)).\nAs explained by our Supreme Court, \u201cthe rules of discovery contained in the Criminal Procedure Act were enacted by the General Assembly to ensure, insofar as possible, that defendants receive a fair trial and not be taken by surprise. They were not enacted to serve as mandatory rules of exclusion for trivial defects in the State\u2019s mode of compliance.\u201d State v. Thomas, 291 N.C. 687, 692, 231 S.E.2d 585, 588 (1977). Despite the General Assembly\u2019s emphasis on protecting defendants from the State\u2019s noncompliance, \u201c[s]uch legislative intent . . . does not give defendants carte blanche to violate discovery orders, but rather, defendants and defense counsel both must act in good faith, just as is required of their counterparts representing the State.\u201d State v. Gillespie, 180 N.C. App. 514, 525, 638 S.E.2d 481, 489 (2006), modified and affirmed, 362 N.C. 150, 655 S.E.2d 355 (2008). Thus, the rules of discovery have been applied with equal force to both defendants and the State to ensure a fair trial and avoid unfair surprise for both parties. See, e.g., State v. McMahon, 67 N.C. App. 181, 183, 312 S.E.2d 526, 527 (1984) (applying common law notions of fairness and holding that discovery rule applicable to State is equally applicable to defendant).\nIn State v. Cooper, _ N.C. App. _, _, 747 S.E.2d 398, 414 (2013), appeal dismissed and disc. review denied, _ N.C. _, 753 S.E.2d 783 (2014), this Court reversed the trial court\u2019s imposition of sanctions against a defendant when the sanction imposed \u201cwas disproportionate to the purposes this state\u2019s discovery rules were intended to serve.\u201d In Cooper, the trial court had excluded the testimony of the defendant\u2019s second expert witness as a sanction for the defendant\u2019s failure to disclose the witness to the State as required by N.C. Gen. Stat. \u00a7 15A-905 (2011). _ N.C. App. at 747 S.E.2d at 403. The defendant had only proffered the second expert witness after the State successfully moved at trial to exclude the testimony of defendant\u2019s first expert witness on the basis that the witness was not qualified to testify as an expert. Id. at _, 747 S.E.2d at 413. Because the State had not indicated any intention to challenge the defendant\u2019s first expert witness prior to trial, the defendant did not anticipate needing a second expert, and, as a result, did not have the second expert on its witness list. Id. at _, 747 S.E.2d at 413.\nIn addressing whether the trial court abused its discretion in sanctioning the defendant by excluding the testimony of the expert witness, the Cooper Court first recognized that the imposition of sanctions on a criminal defendant has constitutional implications because of a defendant\u2019s constitutional right under the Sixth Amendment to present a defense. Id. at _, 747 S.E.2d at 414. The Court then pointed to the factors set out by the United States Supreme Court in Taylor v. Illinois, 484 U.S. 400, 98 L. Ed. 2d. 798, 108 S. Ct. 646 (1988), to be considered in determining the appropriate sanction, consistent with that constitutional right, when a defendant has failed to disclose a witness:\n\u201cAlthough the Taylor Court declined to cast a mechanical standard to govern all possible cases, it established that, as a general matter, the trial judge (in deciding which sanction to impose) must weigh the defendant\u2019s right to compulsory process against the countervailing public interests: (1) the integrity of the adversary process, (2) the interest in the fair and efficient administration of justice, and (3) the potential prejudice to the truth-determining function of the trial process. The judge should also factor into the mix the nature of the explanation given for the party\u2019s failure seasonably to abide by the discovery request, the willfulness vel non of the violation, the relative simplicity of compliance, and whether or not some unfair tactical advantage has been sought.\u201d\n_ N.C. App. at _, 747 S.E.2d at 415 (quoting Chappee v. Vose, 843 F.2d 25, 29 (1st Cir. 1988)).\nApplying the Taylor factors to the facts in Cooper, the Court reasoned:\nDefendant, in failing to provide earlier notice to the State, was clearly not seeking any tactical advantage. The trial court made no finding of willful misconduct, and the record divulges none. Defendant only sought out another expert... after the State was successful in moving to limit [the first expert\u2019s] testimony in the middle of the trial. At that point, Defendant had no way to present vital expert testimony and comply with N.C.G.S. \u00a7 15A-905(c)(2).\nIn light of the lack of willful misconduct on the part of Defendant, the rational reason presented for failing to inform the State before trial that Defendant would be calling [the second expert], the role of the State in having this situation arise after the trial had commenced, the fundamental nature of the rights involved, the importance to the defense of the testimony excluded, and the minimal prejudice to the State had the trial court imposed a lesser sanction - such as continuance or recess, we hold that imposing the harsh sanction of excluding [the second expert] from testifying constituted an abuse of discretion.\nId. at _, 747 S.E.2d at 415.\nIn State v. Dorman, _ N.C. App. _, 737 S.E.2d 452, appeal dismissed and disc. review denied, 366 N.C. 594, 743 S.E.2d 205 (2013), this Court addressed, in similar fashion, the appropriateness of the extreme sanction of dismissal when the State has committed a discovery violation, even though sanctioning the State has no constitutional implications. The Court held that \u201c \u2018[g]iven that dismissal of charges is an \u201cextreme sanction\u201d which should not be routinely imposed,\u2019 \u201d such dismissals \u201c \u2018should also contain findings which detail the perceived prejudice to the defendant which justifies the extreme sanction imposed.\u2019 \u201d Id. at _, 737 S.E.2d at 470 (quoting State v. Allen, _ N.C. App. _, _, 731 S.E.2d 510, 527-28, disc. review denied, 366 N.C. 415, 737 S.E.2d 377 (2012), cert. denied, _ U.S. _, 185 L. Ed. 2d 876, 133 S. Ct. 2009 (2013)). After noting that the defendant had possession of the evidence the State initially failed to disclose, the Court held that \u201c[a]bsent a finding explaining the specific and continuing prejudice Defendant will suffer, the trial court\u2019s order dismissing the charge on this basis is in error.\u201d Id. at _, 737 S.E.2d at 470.\nWe see no reason why the rules set out in Cooper and Dorman should not apply with equal force to a trial court\u2019s refusal to instruct the jury on an affirmative defense presented by the defendant. Such a sanction in this case has the same effect on the defendant as the \u201charsh sanction\u201d in Cooper that interfered with the defendant\u2019s defense -- even though defendant was allowed to present entrapment evidence, the jury was not instructed in a way that permitted it to consider that evidence as a basis for acquitting defendant. Given such a harsh sanction, the trial court was required, under Dorman, to justify the sanction with findings regarding the prejudice to the State resulting from defendant\u2019s discovery violation.\nRequiring the trial court to consider the prejudice to the State resulting from the defendant\u2019s discovery violation before imposing the extreme sanction of precluding an affirmative defense is also consistent with this court\u2019s holding in State v. McDonald, 191 N.C. App. 782, 786-87, 663 S.E.2d 462, 465 (2008). In McDonald, the defendant failed to provide the State with notice of the defenses it intended to assert at trial as required by N.C. Gen. Stat. \u00a7 15A-905, despite the State having made several motions requesting notice of defenses. Id. at 785, 663 S.E.2d at 464-65. The trial court ultimately allowed the defendant to assert the defenses of duress and accident but precluded the defendant from asserting the defenses of voluntary intoxication and diminished capacity. Id, 663 S.E.2d at 465.\nThis Court noted that the State \u201chad anticipated the accident defense\u201d and that \u201cunlike the diminished capacity and voluntary intoxication defenses, the defense of duress would not require substantial preparation on the part of the State, including the engagement of experts.\u201d Id. at 786, 663 S.E.2d at 465. Because the trial court \u201cprecluded only those defenses that would have prejudiced the State\u201d and allowed defendant to proceed with other defenses - either because the State could have anticipated the defense, or because the State could quickly and adequately prepare despite the late notice - this Court held that the trial court\u2019s sanction was not an abuse of discretion. Id. at 787, 663 S.E.2d at 465.\nIn fine with this Court\u2019s analysis in Cooper, Dorman, and McDonald, we hold that in considering the totality of the circumstances prior to imposing sanctions on a defendant, relevant factors for the trial court to consider include without limitation: (1) the defendant\u2019s explanation for the discovery violation including whether the discovery violation constituted willful misconduct on the part of the defendant or whether the defendant sought to gain a tactical advantage by committing the discovery violation, (2) the State\u2019s role, if any, in bringing about the violation, (3) the prejudice to the State resulting from the defendant\u2019s discovery violation, (4) the prejudice to the defendant resulting from the sanction, including whether the sanction could interfere with any fundamental rights of the defendant, and (5) the possibility of imposing a less severe sanction on the defendant.\nIn this case, the trial court found that defendant violated N.C. Gen. Stat. \u00a7 15A-905(c)(l)(b) because \u201cdefendant did not give [the State] specifics as to the basis of the defense.\u201d Assuming, without deciding, that defendant\u2019s notice constituted a discovery violation, we must determine, in light of the factors listed above, whether the trial court abused its discretion in refusing to instruct the jury on the defense of entrapment.\nWe note first that the procedure by which the trial court concluded that defendant failed to comply with the notice requirements suggests that it was not the result of a reasoned decision. The trial court originally denied the State\u2019s pretrial motion for sanctions. At the end of the trial, the trial court indicated that it would hear oral argument regarding the submission of the entrapment defense to the jury, but specifically limited the party\u2019s arguments to the sufficiency of the evidence - the court confirmed that it would not be revisiting the court\u2019s decision to deny the State\u2019s pretrial motion for sanctions. Nevertheless, after ruling that the evidence presented by defendant was insufficient to support an instruction on the defense of entrapment, the trial corut, sua sponte, without giving defendant any notice or an opportunity to be heard, decided to reverse its denial of the State\u2019s pretrial motion for sanctions and preclude the use of the entrapment defense as a sanction.\nIn doing so, the trial court made no findings \u201cjustifying the imposed sanction\u201d as required by N.C. Gen. Stat. \u00a7 15A-910(d) and made no finding that the State had been prejudiced by the lack of specifics in defendant\u2019s notice. The court simply found that defendant had failed to fully comply with the notice statute. The procedure followed by the trial court, the failure to find prejudice, and the lack of findings are inconsistent with the court\u2019s ruling being a reasoned decision to further the purposes of the rules of discovery. Rather, the record suggests that the trial court imposed sanctions simply as an afterthought to bolster its decision not to instruct the jury on entrapment.\nIn addition, our review of the record reveals no basis for imposing the extreme sanction of precluding a defense. There is no indication that defendant, in failing to give more specifics in his notice, acted in bad faith or to gain an unfair advantage at trial. Rather, defendant filed a timely notice well in advance of trial, disclosing his intent to assert the defense of entrapment and including the identity of the specific officer whom defendant contended induced him to commit the crime. The State made no showing that the omission of further details was in bad faith or a tactical move.\nIndeed, the record indicates that any lack of preparation to meet the defense was contributed to by the State\u2019s failing to take timely action. Defendant filed his notice on 2 February 2012 - more than eight months prior to trial. During that time, the State had general notice of defendant\u2019s intent to use the defense and specific notice that Officer Wishon\u2019s actions resulted in the alleged entrapment. Officer Wishon, the State\u2019s lead witness, was readily accessible to the State for questioning regarding his conduct in interacting with defendant. In the event that the State desired additional specifics regarding defendant\u2019s entrapment defense, the State could have requested more information from defendant or moved for an order requiring defendant to provide adequate discovery. Given defense counsel\u2019s apparent belief that he had complied with N.C. Gen. Stat. \u00a7 15A-905(c)(l)(b), the State\u2019s failure to request more information or to alert defendant that its notice was inadequate during the eight months prior to trial, similar to the State\u2019s failure in Cooper to notify the defendant prior to trial of its intention to challenge the defendant\u2019s primary expert, deprived defendant of an opportunity to comply with the rules of discovery in a timely fashion and avoid being subject to sanctions.\nMoreover, the refusal to instruct the jury concerning an affirmative defense is a harsh sanction that implicates defendant\u2019s fundamental right to present a defense at trial. In contrast, the prejudice to the State resulting from defendant\u2019s violation was minimal. During the pretrial motions hearing, defendant gave a detailed proffer of the evidence he intended to present to establish entrapment. The State did not call its first witness until the following day, and defendant did not testify until the second day of trial. Because the evidence on entrapment was testimonial in nature, was limited to the acts of Officer Wishon, and \u201cwould not require substantial preparation on the part of the State, including the engagement of experts[,]\u201d McDonald, 191 at 786, 663 S.E.2d at 465, the additional days to prepare after receiving notice of the nature and extent of defendant\u2019s entrapment defense should have been sufficient to remedy any prejudice to the State. In any event, the State would not have been prejudiced had the trial court imposed a less severe sanction such as a continuance or a recess.\nAfter considering the totality of the circumstances, we hold that the trial court\u2019s refusal to instruct the jury on'the entrapment defense was not a proper sanction for any failure by defendant to provide sufficiently specific notice of his intent to assert the. defense of entrapment. The trial court\u2019s ruling, therefore, constituted an abuse of discretion. See Dorman, _ N.C. App. at _, 737 S.E.2d at 470 (holding trial court\u2019s pretrial order suppressing certain witnesses\u2019 testimony from use in future proceedings based on State\u2019s initial failure to disclose various documented conversations was in error when defendant was in possession of the relevant information well before trial, and trial court failed to detail specific and continuing prejudice defendant suffered as a result of initial nondisclosure and failed to explain how suppression of witnesses\u2019 testimony remedied non-disclosure).\nConclusion\nWe hold that defendant presented sufficient evidence to warrant submission of the entrapment defense to the jury. Further, the trial court abused its discretion when precluding the entrapment defense as a sanction for defendant\u2019s having served a notice of his intent to rely upon the entrapment defense that was not sufficiently specific. Defendant is, therefore, entitled to a new trial.\nNew trial.\nJudges STEPHENS and ERVIN concur.", "type": "majority", "author": "GEER, Judge." } ], "attorneys": [ "Attorney General Roy Cooper, by Assistant Attorney General Alesia M. Balshakova, for the State.", "Gilda C. Rodriguez for defendant-appellant." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. BRANDON MIKAL FOSTER, Defendant\nNo. COA13-1084\nFiled 5 August 2014\n1. Drugs\u2014delivery of cocaine\u2014jury instruction\u2014entrapment\nThe trial court erred in a delivery of cocaine case by failing . to instruct the jury on the defense of entrapment. Defendant presented sufficient evidence that an undercover officer tricked him into believing that the officer was romantically interested in defendant in order to persuade defendant to obtain cocaine for him, that defendant had no predisposition to commit a drug offense such as delivering cocaine, and that the criminal design originated solely with the officer.\n2. Discovery\u2014sanction\u2014failure to instruct jury\u2014defense of entrapment\u2014lack of notice of defense\nThe trial court abused its discretion in a delivery of cocaine case by failing to instruct the jury on the defense of entrapment as a discovery sanction under N.C.G.S. \u00a7 15A-910(a) for failure to provide specific information as to the nature and extent of the defense. The trial court made no findings of fact to justify imposition of such a harsh sanction, and the State had not shown that it suffered any prejudice from the lack of detail in the notice filed eight months prior to trial.\nAppeal by defendant from judgment entered 11 October 2012 by Judge Linwood O. Foust in Mecklenburg County Superior Court. Heard in the Court of Appeals 19 March 2014.\nAttorney General Roy Cooper, by Assistant Attorney General Alesia M. Balshakova, for the State.\nGilda C. Rodriguez for defendant-appellant." }, "file_name": "0365-01", "first_page_order": 375, "last_page_order": 393 }