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North Carolina v. Bailey5/16/1989
The State's evidence tended to show that on 20 May 1987 Officer Childress and several other troopers were at the Charlotte Motor Speedway directing traffic. At about 8:50 p.m., defendant approached Officer Childress who was standing next to his patrol car and asked for help in locating his truck. Defendant told the officer that he had been trying to find his truck for "several hours." Defendant's motions were slow, his speech was slurred, and the officer smelled alcohol about defendant's person.
After defendant explained his situation, Officer Childress pointed out the general location of where defendant's truck was thought to be. Defendant was told that he was intoxicated and that he should wait awhile. Defendant then visually located his truck and walked away.
The officer observed defendant as he walked off and he noticed that defendant stumbled and staggered. Officer Childress then saw defendant get into his truck and the interior light come on momentarily. When the truck started to move, the officer got into his car and drove toward defendant. Defendant thereafter exited the parking lot and drove his truck about 500 feet on Highway 29. Officer Childress pulled defendant over and arrested him for driving while impaired. He was taken into custody and given a breathalyzer test which registered .14. Defendant was convicted of driving while impaired before the Honorable F. M. Montgomery in Cabarrus County District Court and a Level Five punishment was imposed.
Defendant appealed that judgment to the Superior Court of Cabarrus County. He was convicted before a jury and a Level Five punishment was imposed. Defendant's request for a limited driving privilege was denied. Defendant appeals to this Court.
I.
We will first address the issue of whether the trial court erred in denying defendant's request that the jury be charged on the defense of entrapment. Defendant argues that he offered evidence sufficient to raise the question of entrapment for the jury.
A defendant is entitled to have the judge charge the jury on all of the substantive features of the case which the evidence supports. See State v. Brock, 305 N.C. 532, 290 S.E.2d 566 (1982). However,
efore the trial court can submit the defense of entrapment to the jury there must be some credible evidence tending to support defendant's contention . . . . The defense of entrapment consists of two essential elements: (1) acts of persuasion, trickery or fraud carried out by law enforcement officers . . . to induce a defendant to commit a crime; and (2) that the criminal design originated in the minds of the law enforcement officers rather than the innocent defendant, such that the crime was the product of the creative activity of the law enforcement officers.
State v. Martin, 77 N.C. App. 61, 66, 334 S.E.2d 459, 462 (1985), cert. denied, 317 N.C. 711, 347 S.E.2d 47 (1986). (Citation omitted.)
The facts here show that defendant approached Officer Childress seeking assistance in locating his truck. Officer Childress testified
that defendant had an odor of an intoxicant about his person, and that as defendant stood talking with him, he immediately formed the opinion that defendant was under the influence of some intoxicant. Defendant's testimony denied that the officer told him that he was intoxicated and that he better wait awhile. He contends that he would not have driven had he been instructed not to do so.
The foregoing evidence does not support a finding that defendant was entitled to
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