State v. Keller , 265 N.C. App. 526 ( 2019 )

IN THE COURT OF APPEALS OF NORTH CAROLINA
No. COA17-1318
Filed: 21 May 2019
Lincoln County, No. 15CRS051911
STATE OF NORTH CAROLINA
v.
DAVID ALAN KELLER, Defendant.
Appeal by defendant from judgment entered 26 September 2016, by Judge Eric
L. Levinson in Lincoln County Superior Court. Heard in the Court of Appeals 6
September 2018.
Attorney General Joshua H. Stein, by Assistant Attorney General M. Elizabeth
Guzman, for the State.
Appellate Defender Glenn Gerding, by Assistant Appellate Defender Emily H.
Davis, for defendant-appellant.
BERGER, Judge.
On August 23, 2016, a Lincoln County jury found David Alan Keller
(“Defendant”) guilty of solicitation of a minor by computer or electronic device and
appearing at a meeting location for the purpose of committing an unlawful sex act.
Defendant timely appeals, arguing that the trial court erred when it did not submit
the defense of entrapment to the jury. We find no error.
Factual and Procedural Background
STATE V. KELLER
Opinion of the Court
On May 11, 2015, Detective Brent Heavner (“Detective Heavner”) of the
Lincolnton Police Department went undercover online as a fifteen-year-old boy with
the fictitious name “Kelly.” As part of a year-and-a-half-long operation targeting
online sexual predators, “Kelly” posted a personal advertisement titled “Boy Needs a
Man” on Craigslist’s adults-only “Personal Encounters” section, which read:
Okay. I never, never did this so here it goes. I’m wanting
to experience a man. Never had tried I but want to. I have
been with a girl and I want to try a man. Am posting here
because I want a complete stranger so no one will find out
about this. I would like an older man that is not shy and
knows what to do because I will probably be a little
nervous. I would prefer a pic and a number so we can, so
we cannot use e-mail. I will be picky so be patient but
would like to do this soon. You would have to come to me.
Would like to try anything. And I am a white male open to
anyone.
The next day, at 6:07 a.m., Defendant responded to “Kelly’s” advertisement as
follows:
Hey[.] I am a 44 white male looking for a young guy to take
care of and spoil[.] I am 175 pounds, 32/32 pants, 6.5 cut,
DD free. If you would like to be a daddy’s boy and have
your every need provided for you let me know I am looking
for a boy to treat very special.
At 10:52 a.m., “Kelly” responded, “whats your number and what do you like[?]”
Defendant e-mailed his phone number. When “Kelly” did not answer immediately,
Defendant sent the following three emails later that day:
2:43 p.m.: I sent you my number. I look like a 44 year old
guy. Not fat and not ugly.
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STATE V. KELLER
Opinion of the Court
9:38 p.m.: Are u still needing a man. I am still looking for
a boy[.]
9:51 p.m.: This man is still looking for his boy toy[.]
Over the next few days, “Kelly” and Defendant exchanged a series of text
messages all detailing Defendant’s desire for “Kelly” to live with him. After initial
introductions, Defendant stated, “I could offer you a home. Car to drive[,] phone[,]
clothes[, and] money to spend. Pretty much what ever you need.” “I have had 3 boys.
They never had to work and got everything they ever asked for[.]” When Defendant
and “Kelly” exchanged photos (Detective Heavner used a photo from Google images),
Defendant stated, “I would love to make you my boy,” “I would take really good care
of you,” “I think you’re a little hottie,” and “I could have sex 5 times a day.” “Kelly”
responded that he could move in that day, but he was afraid that he may be too young
for Defendant.
[Detective Heavner]: I may be too young but I am needing
a place to go, my aunt is about to put me back in foster care
and I will run away if she does[.]
[Defendant]: How old are u[?] If your 17 it’s legal[.]
[Detective Heavner]: I am not quiet (sic) 16 and actually 16
is the legal age[.]
[Defendant]: Send me a pic I can see your face please[.]
[Detective Heavner]: I am scared to show my face right
now.
[Defendant]: Well. I could let you live here with me and
take care of you. But we could not have sex till you was old
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STATE V. KELLER
Opinion of the Court
enough[.] . . . I do not want to go to jail[.] I had one boy I
played with when he was 16 but turned 17 the next week[.]
....
[Defendant]: You know my son got on line and thought he
was talking to a girl it turned out to be a cop and when he
went to meet her he got arrested and went to jail for 3
years[.]
[Detective Heavner]: For real?
[Defendant]: Yes for real he really went to jail for 3 years
and now has to register as a sex offender[.]
Knowing the consequences of talking online to a stranger and knowing that
“Kelly” was not yet sixteen-years-old, Defendant continued the conversation,
agreeing to have sexual relations with “Kelly.”
[Detective Heavner]: I am very curious[.]
[Defendant]: Curious about what[?]
[Detective Heavner]: I don’t know how to say it[.]
[Defendant]: Just say it. I won’t judge you[.]
[Detective Heavner]: How do I know if I am[.] And if I come
there and we can’t be sexual it might be a mistake[.]
[Defendant]: I said we could[.]
[Detective Heavner]: You said we could when I am old
enough for u[.]
[Defendant]: Well like I said don’t want to talk through
text. But will talk to you in person about it[.]
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STATE V. KELLER
Opinion of the Court
[Detective Heavner]: You said I said we could so does that
mean yes cuz if not I may have to find someone else first to
see what its like[.]
[Defendant]: Don’t find anyone else. Please[.]
[Detective Heavner]: Only if we can have oral sex and anal
tomorrow so I will know, just give me a yes or no and I will
shut up about it[.]
[Defendant]: Yes[.]
....
[Defendant]: I have been looking for a boy for a long time[.]
After exchanging numerous texts, Defendant agreed to meet “Kelly” and take
him back to Defendant’s home. When Defendant arrived at the meeting location,
officers were on scene and placed Defendant under arrest.
On August 18, 2016, Defendant was indicted for solicitation by computer or
electronic device of a person believed to be fifteen or younger for the purpose of
committing an unlawful sex act and appearing at the meeting location where he was
to meet the person whom he believed was a child. At trial, Defendant testified that
he began using Craigslist’s personal advertisements in 2006. He stated that over the
course of eleven years, he had met multiple men on the website and three even lived
with him for extended periods of time. Defendant testified that he responded to
“Kelly’s” advertisement because he and his live-in companion were having problems
and Defendant wanted to make him jealous. After repeatedly claiming that he just
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STATE V. KELLER
Opinion of the Court
wanted to “make sure Kelly was okay,” Defendant finally conceded that sex is a part
of what he gets in return for his generosity.
On August 23, 2016, the jury found Defendant guilty as charged. On
September 26, 2016, the trial court sentenced Defendant to ten to twenty months
imprisonment and mandatory registration as a sex offender for thirty years.
Defendant filed a petition for a writ of certiorari, which was granted by this Court.
Defendant argues on appeal that the trial court erred when it failed to instruct the
jury on entrapment.
Analysis
“Whether the evidence, taken in the light most favorable to the defendant, is
sufficient to require the trial court to instruct on a defense of entrapment is an issue
of law that is determined by an appellate court de novo.” State v. Ott, 236 N.C. App.
648, 651, 763 S.E.2d 530, 532 (2014) (citation omitted). “Under a de novo review, the
court considers the matter anew and freely substitutes its own judgment, for that of
the lower tribunal.” Id. at 651, 763 S.E.2d at 533 (citation and quotation marks
omitted).
“In determining whether a defendant is entitled to a jury instruction on
entrapment, the trial court must view the evidence in the light most favorable to the
defendant.” State v. Morse, 194 N.C. App. 685, 690, 671 S.E.2d 538, 542 (2009)
(citation omitted). “Before a [t]rial [c]ourt can submit [an entrapment] defense to the
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STATE V. KELLER
Opinion of the Court
jury there must be some credible evidence tending to support the defendant’s
contention that he was a victim of entrapment. . . .” State v. Burnette, 242 N.C. 164,
173, 87 S.E.2d 191, 197 (1955) (citations omitted). “The issue of whether or not a
defendant was entrapped is generally a question of fact to be determined by the jury,
and when the defendant’s evidence creates an issue of fact as to entrapment, then the
jury must be instructed on the defense of entrapment.” Ott, 236 N.C. App. at 651-52,
763 S.E.2d at 533 (purgandum).
“Entrapment 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.” State v. Davis, 126 N.C. App. 415, 417, 485 S.E.2d 329, 331 (1997)
(citation omitted). “Entrapment is a complete defense to the crime charged.” Morse,
194 N.C. App. at 689, 671 S.E.2d at 542 (citation and quotation marks omitted). The
defendant has the burden of proving the affirmative defense of entrapment. State v.
Luster, 306 N.C. 566, 579, 295 S.E.2d 421, 428 (1982).
“The defense of entrapment is available when there are acts of persuasion,
trickery or fraud carried out by law enforcement officers or their agents to induce a
defendant to commit a crime and when the origin of the criminal intent lies with the
law enforcement agencies.” State v. Hageman, 307 N.C. 1, 28, 296 S.E.2d 433, 449
(1982) (citations omitted). “We note that this is a two-step test and the absence of
one element does not afford the defendant the luxury of availing himself of the
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STATE V. KELLER
Opinion of the Court
affirmative defense of entrapment.” Morse, 194 N.C. App. at 690, 671 S.E.2d at 542.
Under this test, “[t]he defendant must show that the trickery, fraud or deception was
practiced upon one who entertained no prior criminal intent.” Hageman, 307 N.C. at
28, 396 S.E.2d at 449 (purgandum).
“A clear distinction is to be drawn between inducing a person to commit a crime
he did not contemplate doing, and the setting of a trap to catch him in the execution
of a crime of his own conception. The determinant is the point of origin of the criminal
intent.” Morse, 194 N.C. App. at 690, 671 S.E.2d at 542. When analyzing whether a
defendant was predisposed to commit the crime, our Supreme Court has stated:
“ ‘[w]illing’ is a synonym of the word ‘predisposed.’ ” Hageman, 307 N.C. at 26, 396
S.E.2d at 447 (citation omitted). Therefore, “[p]redisposition may be shown by a
defendant’s ready compliance, acquiescence in, or willingness to cooperate in the
criminal plan where the police merely afford the defendant an opportunity to commit
the crime.” Id. at 31, 396 S.E.2d at 450-51 (citations omitted).
“It is well settled that the defense of entrapment is not available to a defendant
who has a predisposition to commit the crime independent of governmental
inducement and influence.” Id. at 29, 396 S.E.2d at 449.
The fact that officers or employees of the government
merely afford opportunities or facilities for the commission
of the offense does not defeat the prosecution, nor will the
mere fact of deceit defeat a prosecution, for there are
circumstances when the use of deceit is the only practicable
law enforcement technique available. It is only when the
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STATE V. KELLER
Opinion of the Court
[g]overnment’s deception actually implants the criminal
design in the mind of the defendant that the defense of
entrapment comes into play.
State v. Salame, 24 N.C. App. 1, 7, 210 S.E.2d 77, 81-82 (1974) (citation and quotation
marks omitted) (emphasis added).
This Court was presented with a similar legal and factual scenario in State v.
Morse. State v. Morse, 194 N.C. App. 685, 671 S.E.2d 538. In Morse, the defendant
entered an adults-only online chat room and began speaking with an undercover law
enforcement officer. Id. at 694, 671 S.E.2d at 539-41. As part of an undercover
operation, the officer posted as a fourteen-year-old girl claiming that “she was
inexperienced and looking for an older ‘friend.’ ” Id. at 687, 671 S.E.2d at 540. When
Morse went to meet the officer in person, he was arrested. Id. at 687, 671 S.E.2d at
540.
Morse appealed his conviction and argued that the trial court erred when it
refused to submit the defense of entrapment to the jury. Id. at 689, 671 S.E.2d at
541-42. In concluding that the trial court did not err in not submitting the
entrapment defense to the jury, the Morse Court held that “[a]lthough defendant did
not have a criminal record, record of molestation, or record of other similar offensive
acts, uncontroverted record evidence shows that defendant had previously engaged
in sexually explicit communications with other users in adults only chat rooms and
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STATE V. KELLER
Opinion of the Court
even met with one of those users to engage in sexual contact.” Id. at 692, 671 S.E.2d
at 543.
Here, Defendant failed to prove he was entitled to an instruction on
entrapment. The evidence supports Defendant’s predisposition and willingness to
engage in the crime charged. Defendant responded to a posting entitled “Boy Needing
a Man” with messages that (1) inquired if Kelly wanted to by a “daddy’s boy,” [R.p.12]
(2) stated Defendant was “looking for a boy,” [R.p.12] and (3) repeated that Defendant
was “still looking for a boy” [R.p.13] when Kelly failed to respond quickly enough for
Defendant. (Emphasis added). Even after “Kelly” told Defendant he was fifteen-
years-old and may be too young [R.p.24], Defendant continued to speak with Kelly,
and Defendant asked Kelly to send him a picture [R.p.24]. Defendant then sent
sexually explicit messages to someone he believed was fifteen years old and
attempted to meet “Kelly” for the purpose of engaging in sexual acts. Thereafter, he
readily agreed to have oral and anal sex with “Kelly” when they were to meet.
Additionally, Defendant failed to sufficiently demonstrate that he was not
predisposed to committing the act. As in Morse, it is irrelevant that Defendant did
not have a criminal record, never solicited a child for sex, never had sex with a child,
or never brought a child into his home. Contrary to Defendant’s assertion, Detective
Heavner did not manipulate Defendant into the ongoing conversation, nor did he
“actually implant[ ] the criminal design” in Defendant’s mind. Salame, 24 N.C. App.
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STATE V. KELLER
Opinion of the Court
at 7, 210 S.E.2d at 81-82. Detective Heavner merely afforded Defendant the
opportunity to commit the offense in which he willingly engaged.
Moreover, Defendant had a nine-year history of responding to personal
advertisements on Craigslist. He brought three of the men he had interacted with
over the years into his home. One of the three, with whom he had engaged in sexual
conduct, was sixteen-years-old. Furthermore, even after “Kelly” informed Defendant
that he may be too young, Defendant continued to speak with him. After Defendant
told Detective Heavner that he could come live with Defendant and that Defendant
could take care of “Kelly,” Defendant readily agreed to have oral and anal sex with
“Kelly” the following day. At trial, Defendant even admitted that sex is a part of what
he receives in return for his generosity to the people he met online.
Even when viewed in the light most favorable to Defendant, he has failed to
demonstrate that he was entitled to an instruction on entrapment.
Conclusion
The trial court did not err when it declined to submit the defense of entrapment
to the jury.
NO ERROR.
Judge TYSON concurs.
Judge INMAN dissents in separate opinion.
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No. COA17-1318 – State v. Keller
INMAN, Judge, dissenting.
Because the evidence required the trial court to instruct the jury on
Defendant’s defense that he was entrapped by Detective Heavner, I respectfully
dissent.
“It is the duty of the court to charge the jury on all substantial features of the
case arising on the evidence . . . [a]nd all defenses presented by defendant’s evidence
are substantial features of the case[,]” State v. Dooley, 285 N.C. 158, 163, 203 S.E.2d
815, 818 (1974) (citations omitted). This duty is particularly important when the
defense concerns the conduct of State actors.1 I would hold the trial court committed
prejudicial error in denying Defendant’s request for an instruction on entrapment,
vacate his conviction, and remand for a new trial. I express no opinion regarding
whether Defendant is guilty or innocent—that question is reserved for a jury.
I. FACTUAL HISTORY
As the majority rightly points out, although Defendant bears the burden of
proof in seeking an entrapment instruction,2 resolution of this appeal requires us to
1 The defense of entrapment is itself a check on unwarranted government intrusion into the
lives of the citizenry and a limitation on the misallocation of State resources: “[L]aw enforcement
tactics that seek to induce persons who are not predisposed to crime to engage in criminal activity are
intolerable for two reasons. First, individuals have a strong interest in privacy: law-abiding people
should be left alone by the government. Second, law enforcement resources are wasted when the
subjects of investigation are not predisposed to commit crimes.” Entrapment Through Unsuspecting
Middlemen, 95 Harv. L. Rev. 1122, 1130-31 (1982) (footnotes omitted).
2 Defendant bears “the burden of proving entrapment to the satisfaction of the jury.” State v.
Davis, 126 N.C. App. 415, 418, 485 S.E.2d 329, 331 (1997). The measure of proof that satisfies this
burden is for the jury to determine, and may be as low as a bare preponderance of the evidence. State
v. Miller, ___ N.C. App. ___, ___, 812 S.E.2d 692, 695 (2018).
STATE V. KELLER
Inman, J., dissenting
consider the evidence introduced at trial in the light most favorable to the Defendant.
We also, “[f]or purposes of the entrapment issue, . . . must assume that [D]efendant’s
testimony is true.” State v. Foster, 235 N.C. App. 365, 374, 761 S.E.2d 208, 215 (2014);
see also State v. Ott, 236 N.C. App. 648, 652, 763 S.E.2d 530, 533 (2014). Given this
standard of review, examination of Defendant’s evidence not addressed in the
majority opinion, including Defendant’s testimony, is necessary.
Defendant testified at trial that he sought personal relationships with men via
Craigslist, as opposed to other online services, because children frequented other
websites and Craigslist requires each user to verify that he is eighteen or older.
Defendant posted “off and on” to Craigslist, sometimes looking to “meet somebody”
on the Casual Encounters section of the site, which largely, but not exclusively,
featured people looking for sex. He testified that after meeting someone online, he
would “take care of them and help them out until they move on, . . . that’s just what
I do.” He further explained that he “enjoy[s] having somebody to take care of. Not
for sex. . . . That, that’s not what it’s about. It’s about just being needed and taking
care of somebody.” Defendant characterized these relationships as offering
“[c]ompanionship,” admitting that sex “[o]ccasionally” factored into them but also
insisting that “[i]t’s not every time, no. . . . [It] wasn’t a primary objective.” Instead
of sex, Defendant testified, the common element was simply helping the person until
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STATE V. KELLER
Inman, J., dissenting
he could get back on his feet by offering a free place to stay, assistance with
employment or school, and money for clothes and transportation.
Defendant met hundreds of men on Craigslist; some of the men moved in with
Defendant and “[s]ome just bec[a]me friends.” For example, Defendant, after
responding to ads in the Casual Encounters section of Craigslist, met two young men
and allowed them to move into his house. Defendant bought the men clothes and
gave them money, but he never had sex with either of them. 3 Although Defendant
testified that he had sex with four men who had previously lived with him—only one
of whom he met on Craigslist—each was eighteen or older.4 Defendant flatly denied
ever soliciting a minor on Craigslist or otherwise.
Defendant testified that he responded to Detective Heavner’s Craigslist ad not
because he was seeking sex with a minor, but because he wanted to make his
boyfriend jealous. Defendant admitted that his first response to Detective Heavner’s
3 Despite their Craigslist personals referring to them as “boys,” both of these men were
eighteen years old or older. Defendant testified that he “call[ed] everybody ‘boy’[,]” particularly people
under the age of 25, and another witness who testified at trial corroborated Defendant’s testimony
that he used the word to refer to adult men younger than him. Defendant further testified that he
understood Detective Heavner’s use of the phrase “boy toy” to refer to a younger man with an older
man, but that Defendant did not believe it carried a sexual connotation. Defendant also testified that
he used the word “boy” in correspondence with Detective Heavner to mean “[a] person that I take care
of.”
4 The majority asserts Defendant had sex with a sixteen-year-old boy who moved into
Defendant’s home after interacting with him on Craigslist. This fact is simply not supported by the
evidence when viewed in the light most favorable to the Defendant. Although Defendant admitted
texting Detective Heavner that he “had one boy I played with when he was 16 but turned 17 the next
week[,]” he testified that this referred to a sexual encounter he had at the age of nineteen, 33 years
earlier. In any event, sixteen is the age of consent in North Carolina. N.C. Gen. Stat. §§ 14-27.25 and
14-27.30 (2017).
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STATE V. KELLER
Inman, J., dissenting
Craigslist ad was sexual in nature. He also testified, however, that he believed he
was responding to an ad placed by an adult. Defendant admitted to discussing sex
with Detective Heavner in their early text messages back and forth, but these text
messages all occurred before Detective Heavner disclosed “Kelly’s” age. After these
initial messages, Detective Heavner texted the following: “I may be to[o] young but I
am needing a place to go, my aunt is about to put me back in foster care and I will
run away if she does[.]” Defendant replied by asking how old “Kelly” was and stated
“[i]f you’re 17 it’s legal.” “Kelly” responded: “I am a good kid, just my parents are shit
bags and are in prison and I am the one suffering, I am not quiet [sic] 16 and actually
16 is the legal age.”
Defendant testified he did not recall seeing a reference to “Kelly” being under
sixteen at the time he was texting with Detective Heavner, but that he “was under
the impression” from the text messages that “Kelly” was seventeen years old and
under the age of eighteen, not fifteen years old and under the age of consent.
Defendant also testified that he would not have sex with anyone under eighteen.
Defendant’s next mention of sex confirms this: “Well. I could let you live here with
me and take care of you[.] . . . But we could not have sex till [sic] you was [sic] old
enough.” Defendant then reiterated his desire not to have sex with “Kelly” if he was
underage: “But I do not want to go to jail. . . . So I could not have sex till [sic] you was
[sic] old enough.”
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STATE V. KELLER
Inman, J., dissenting
As pointed out by the majority, Defendant continued to interact with “Kelly”
after learning he was under eighteen. He did so, per his testimony, to “make sure
this person is okay[,]” because “when [‘Kelly’] started talking about [how] he was
living with his aunt and she didn’t want him, his parents [were] in jail, he was going
to run away, he was going to find the next available guy, I remember telling him
that’s dangerous, you know, you could get hurt.” His testimony continued:
[DEFENDANT:] I still kept talking to [“Kelly”] because he
said, “If you don’t quit talking to me, I’m going to go ahead
and get somebody else.”
I said, “No, no, no. Don’t do that.”
So now I’m really concerned. You know, there’s crazy
people out there.
....
[DEFENDANT’S COUNSEL:] Okay. And after you had
texted that, “We can wait until you are old enough,” who
brought up the idea of any other sexual act or –
[DEFENDANT:] Detective [Heavner] is the only one that
brought up anything sexual.
....
Sex was not on my mind at this time. The only thing that
was on my mind was that this person was really going to
go out and meet somebody else. Was he really without
food? Was he really without clothes? Was he really in a
situation where his aunt didn’t want him? His parents are
in prison. If all this is true, it’s all the factors for danger.
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STATE V. KELLER
Inman, J., dissenting
Following Defendant’s expression of his unwillingness to have sex with “Kelly”
as a minor because he did not want to go to prison, it was Detective Heavner, and not
Defendant, who re-initiated the discussion of sex. Ensuing responses from Defendant
certainly could be construed by a jury—which, unlike this Court, is not bound by any
presumption favorable to Defendant—to indicate sexual interest in “Kelly.” At trial,
however, Defendant offered non-sexual explanations for many of these comments,
which our precedents require us to take as true. Foster, 235 N.C. App. at 374, 761
S.E.2d at 215; Ott, 236 N.C. App. at 652, 763 S.E.2d at 533.
Defendant’s text messages included a request for a picture of “Kelly’s” face,
which Defendant testified he asked for in order to try and verify “Kelly’s” age, and a
statement that “[w]e could do all you wanted to do if you was my boy[,]” which
Defendant described as offering “Kelly” a place to live without the fulfillment of any
sexual desires.5 At one point in the conversation, “Kelly” stated he wanted Defendant
to be the first man with whom he had sex; four messages later, Defendant replied,
“Ok. Well we can fix that. We will go slow[,]” a remark not inconsistent with an
intent to wait until “Kelly” was older.
Shortly after Defendant’s message to “Kelly” that they would “go slow,” Officer
Heavner proposed meeting immediately. Defendant responded with an offer to meet
5 As recounted supra, Defendant testified that he used the word “boy” with Detective Heavner
to describe men he takes care of, a relationship he explained elsewhere in his testimony as not
necessarily involving sex.
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STATE V. KELLER
Inman, J., dissenting
the following day. “Kelly” replied by texting: “Ok. . . . I want to perform oral sex on
[you] really bad for some reason can we do that[?]” Defendant demurred, texting he
did not want to talk about sex; he testified at trial that it was his practice to refrain
from talking about sex via text message on his phone because he found it vulgar. The
issue did not arise again until several messages later, when “Kelly” expressed a fear
that he might not be gay, and was therefore unsure if he should move in with
Defendant without having sex together first. Defendant responded that he had
previously said they could have sex; “Kelly” replied, “[y]ou said we could when I am
old enough for [you.]” Defendant once more requested that they not discuss sex
through text messages. That statement was followed by this exchange:
[DETECTIVE HEAVNER:] You said [“]I said we could[”]
so does that mean yes [because] if not I may have to find
someone else first to see what its like[.]
[DEFENDANT:] Yes[.]
....
[DEFENDANT:] Don’t find anyone else. Please[.]
[DETECTIVE HEAVNER:] Only if we can have oral sex
and anal tomorrow so I will know, just give me a yes or no
and I will shut up about it[.]
[DEFENDANT:] Yes[.]
Defendant testified he made these statements because he did not want “Kelly,” in an
effort to escape a desperate home life, to find another man who might be dangerous,
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STATE V. KELLER
Inman, J., dissenting
and that he “just said ‘yes’ to shut [‘Kelly’] up.” Detective Heavner issued his
ultimatum after Defendant had warned “Kelly” that other men might try to harm
him. After the ultimatum, Defendant did not engage in any sexually explicit
conversation or discuss any sex acts with “Kelly,” despite Detective Heavner
repeatedly doing so; indeed, Defendant again asked “Kelly” to “[s]top talking about
sex stuff.”
The text messages eventually returned to the topic of the logistics of meeting,
with Defendant agreeing to meet the following day around lunchtime. Defendant
testified that he agreed to that arrangement because it would offer him the chance:
to sit down and speak with [“Kelly’s”] aunt and [a neighbor
Detective Heavner had mentioned in an earlier message],
[to] make sure everybody knew what was going on. If he
did need a place, I would take him back. I had the room. I
would give him a place to live and t[ake] care of him and
provide[] him things.
....
That’s why I wanted to talk to his aunt and the neighbor[.]
Following further discussion about picking up “Kelly,” Defendant travelled to
Lincolnton and was arrested at the meeting spot.
II. ANALYSIS
A. Defendant’s Intent
The majority holds that Defendant had the requisite intent to solicit a minor
for sex, so that an entrapment instruction was improper. The majority’s position,
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STATE V. KELLER
Inman, J., dissenting
however, is based on several assertions that are not supported by the evidence when
it is considered in the light most favorable to the Defendant, as required by the
applicable standard of review. Ott, 236 N.C. App. at 651-52, 763 S.E.2d at 533.
First, the majority states that “after ‘Kelly’ told Defendant he was fifteen-
years-old and may be too young, Defendant continued to speak with Kelly[,]” later
“sen[ding] sexually explicit messages to someone he believed was underage[.]” The
evidence presented at trial, when considered in the light mandated by our precedents,
does not support this contention. Defendant testified that he initially believed he was
conversing with someone eighteen or older. When “Kelly” texted that he was not
eighteen, Defendant testified, he did not actually understand that “Kelly” was fifteen,
but was instead “under the impression” he was seventeen. Defendant testified that
he did not “sen[d] sexually explicit messages to someone he believed was underage,”
as asserted by the majority. Although the jury might not have believed this testimony
and rejected Defendant’s entrapment defense, our precedents require that, when
considering whether the instruction was mandated, i.e., whether the jury should
decide this issue, we must take Defendant at his word. Foster, 235 N.C. App. at 374,
761 S.E.2d at 215; Ott, 236 N.C. App. at 652, 763 S.E.2d at 533.
Second, the majority writes that Defendant “attempted to meet ‘Kelly’ for the
purpose of engaging in sexual acts” and “[t]hereafter . . . readily agreed to have oral
and anal sex with ‘Kelly’ when they were to meet.” But Defendant testified that once
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STATE V. KELLER
Inman, J., dissenting
he suspected “Kelly” was under eighteen, he expressly refused to have sex with him
until he was older, ceasing further sexual comments until the subject was brought
back up by Detective Heavner. Although Defendant sent additional messages after
that point, those messages are not inconsistent with an intent to have sex only once
“Kelly” was of age. Defendant provided non-sexual explanations for many of those
texts. Defendant also testified that he did not attempt to meet “Kelly” “for the
purpose of engaging in sexual acts[,]” and that he only agreed to have sex with “Kelly”
to get him to “shut up” for fear that he would be left to a damaging home life or end
up in physical danger. The majority’s assertion that Defendant “readily agreed to
have oral and anal sex with ‘Kelly’ ” and travelled to Lincolnton for that purpose is
not supported by this evidence when considered in a light favorable to Defendant.
This Court has previously held a defendant presented evidence sufficient to
merit an entrapment instruction where, according to his testimony, he first expressed
disinterest in committing the criminal act but was later induced by acts of law
enforcement that “involved emotional manipulation[,] including creating a false
relationship and then taking advantage of the defendant’s desire to maintain that
relationship.” Foster, 235 N.C. App. at 375, 761 S.E.2d at 215. Similarly, Defendant’s
testimony, considered in the light most favorable to him, establishes that he did not
“readily” assent to engage in sex with “Kelly” as a person under the age of sixteen.
Defendant testified in pertinent part:
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Inman, J., dissenting
Sex was not on my mind at this time. The only thing [that]
was on my mind was that this person was really going to
go out and meet somebody else. Was he really without
food? Was he really without clothes? Was he really in a
situation where his aunt didn’t want him? His parents are
in prison. If all this is true, it’s all the factors for danger.
We are required to accept as true Defendant’s testimony that he did not intend to
commit a crime prior to Detective Heavner’s inducement and only agreed to commit
the crime, to the extent he did so, once Detective Heavner “implant[ed] the criminal
design.” State v. Salame, 24 N.C. App. 1, 7, 210 S.E.2d 77, 82 (1974) (citation and
internal quotation marks omitted).
B. Predisposition
I also disagree with the majority’s conclusion that, viewed in the light most
favorable to Defendant, the evidence shows he was predisposed to commit the crime
charged absent inducement by Detective Heavner. The majority characterizes the
evidence as showing that Defendant: (1) had a history of interacting with men on
Craigslist; (2) invited three such men to live with him in his home, including a
sixteen-year-old with whom he had sex; (3) continued to converse with “Kelly” after
Detective Heavner disclosed his age; (4) promised to take care of “Kelly” and later
agreed to have sex with him; and (5) acknowledged he had sex with men who
previously lived with him in his home. As recounted supra, this view simply overlooks
evidence favorable to Defendant.
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STATE V. KELLER
Inman, J., dissenting
Most notably, Defendant did not testify that he had ever hosted or engaged in
sex with a sixteen-year-old in his home. Rather, he testified that more than three
decades earlier, when he was nineteen and living in another state, he and a sixteen-
year-old boy engaged in mutual fondling. Also, when considered in the light required
by our precedents, Defendant’s evidence shows that: (1) three adult men moved in
with Defendant after meeting him on Craigslist, only one of whom had sex with
Defendant; (2) Defendant has lived with four boyfriends, all over the age of eighteen,
including the one he met on Craigslist;6 (3) Defendant believed “Kelly” was seventeen,
not fifteen, and immediately refused sex with “Kelly” if he was under eighteen; (4)
Defendant’s offer to “take care of ‘Kelly’ ” did not necessarily include sex; and (5)
Defendant agreed to have sex with “Kelly” not with the intent to have sex with him,
but out of a concern that a refusal would leave “Kelly” in danger.
The evidence in this case is in stark contrast to State v. Morse, 194 N.C. App.
685, 671 S.E.2d 538 (2009), the authority relied upon by the majority. Although the
majority correctly notes that the defendant in Morse, like Defendant here, “had
previously engaged in sexually explicit communications with other users in adults
only chat rooms and even met with one . . . to engage in sexual contact[,]” 194 N.C.
6 I would not hold, as a matter of law, that a man’s prior sexual experiences with consenting
male partners, all above the age of consent, indicate that he is predisposed to engaging in sexual
activity with a child.
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STATE V. KELLER
Inman, J., dissenting
App. at 692, 671 S.E.2d at 543, that was but one factor in a multi-faceted analysis by
this Court:
Furthermore, defendant admitted that he had previously
chatted with underage juveniles. Defendant was familiar,
not only with the ease with which an underage juvenile
could access the adults only chat room, but also with the
idea that other users can and often do falsely represent
their names, age, and appearance. At trial, defendant
admitted that he had looked at baywatch142000’s profile,
which listed her age as “114” and included . . . “Actually
14.” Defendant testified, however, that he looked at the
profile merely to view baywatch142000’s photograph and
thus initially overlooked her age. Defendant further
contended that he was not thinking about age at all, but
rather was in a “sexual mindframe” when chatting with
baywatch142000.
In spite of this testimony, defendant admittedly did not
hesitate to initiate sexually charged conversation with
baywatch142000 within the first few minutes of chatting,
or to begin making arrangements to meet for sexual contact.
Furthermore, defendant did not, at any time during their
chats, express reluctance to meet with baywatch142000,
despite baywatch142000’s repeated references to her age.
Baywatch142000 made it clear that she was a fourteen-
year-old high school student, a virgin, and interested in
finding an older friend in order to gain sexual
experience. . . . Throughout their chats, baywatch142000
was, for the most part, merely responsive to defendant’s
suggestions, while defendant took the more active role in
both the sexually charged conversation and in planning
their meeting.
Id. at 692-93, 671 S.E.2d at 543-44 (emphasis added).
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STATE V. KELLER
Inman, J., dissenting
From that evidence, we determined that the defendant in Morse was not
entitled to an entrapment instruction on his solicitation of a child charge, the same
crime at issue in this case:
Solicitation . . . elementally involves some impetus on
defendant’s part, rather than mere acquiescence. . . . Our
precedent indicates that a trial court may properly refuse
to instruct a jury on entrapment when defendant required
little urging before acquiescing to requests by undercover
officers. Here, the record contains ample evidence which
tends to show that defendant did more than merely
acquiesce and cooperate with a plan formed by
police. . . . Such initiative goes far beyond the mere
compliance, acquiescence in, or willingness to cooperate
which is sufficient to show predisposition.
Id. at 693-94, 671 S.E.2d at 544 (citations and quotation marks omitted) (emphasis
in original).
Here, unlike the defendant in Morse, Defendant did not have advance notice of
“Kelly’s” age when he responded to Detective Heavner’s Craigslist ad; instead,
Defendant initially believed “Kelly” was at least eighteen based on Craigslist’s age
verification requirement. Nor did the State present any evidence Defendant had ever
before engaged in sexually explicit conversations with anyone underage; rather,
Defendant unreservedly testified he had never done so. Also unlike the defendant in
Morse, Defendant repeatedly stated his refusal to have sex with “Kelly” once he
suspected he was under eighteen. It was Detective Heavner, only after Defendant
expressed that refusal, who reintroduced sex into the conversation; it was also
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STATE V. KELLER
Inman, J., dissenting
Detective Heavner who repeatedly pressed Defendant to meet “Kelly.”7 Finally,
Defendant testified “sex was not on my mind” when he agreed to meet “Kelly” after
learning he was under eighteen, expressly disclaiming the “sexual mindframe” the
defendant in Morse admitted to holding.
In short, Morse is distinguishable. Defendant’s evidence, taken in the light
most favorable to him, would allow a reasonable juror to infer that he was not
predisposed to commit the crime for which he was convicted, and that he assented to
Detective Heavner’s plan after repeated denials and only when he believed the
alternative would place “Kelly” in danger. Defendant was entitled to the entrapment
instruction so the jury could evaluate and determine for itself whether Defendant was
entrapped.
C. The Availability of the Defense
The State argues that Defendant could not claim the entrapment defense
because he denied possessing the necessary criminal intent to convict him of soliciting
a child. The majority does not address this argument; because I would vacate
Defendant’s conviction and remand for a new trial, I address this issue.
7 Detective Heavner first requested they meet before disclosing “Kelly’s” age, a request that
Defendant did not address. Detective Heavner again raised the issue after further conversation,
asking “[s]o when ya wanna do this[?]” When Defendant did not respond to the question a second time,
Detective Heavner reiterated “Kelly’s” desire to meet immediately: “Look I am serious if [you are], I
can leave[.] [A]ll I got to do is tell my aunt I found somewhere to go, she will be happy.” Defendant
responded that he was serious, to which “Kelly” replied “I really want to do this like today[.] . . .
Seriously come get me[.]” It was at that point that Defendant offered to meet “Kelly” the following
day.
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STATE V. KELLER
Inman, J., dissenting
Both the State and Defendant cite State v. Neville, 302 N.C. 623, 276 S.E.2d
373 (1981), each asserting it supports their respective positions. In Neville, the
defendant denied committing the acts alleged and was denied an entrapment
instruction. 302 N.C. at 626, 276 S.E.2d at 375. Our Supreme Court rejected the
defendant’s argument that such a denial was error, holding “[t]he defense of
entrapment presupposes the existence of the acts constituting the offense. Where a
defendant claims he has not done an act, he cannot also claim that the government
induced him to do that act.” Id. (citations omitted). The Supreme Court distinguished
denials of acts from denials of criminal intent, plainly rejecting the argument
advanced by the State here: “[T]he entrapment defense is not inconsistent with the
defense of lack of mental state since the defense of entrapment itself is an assertion
that it was the will of the government, and not of the defendant, which spawned the
commission of the offense.” Id. (citation omitted); see also State v. Sanders, 95 N.C.
App. 56, 61, 381 S.E.2d 827, 830 (1989) (“[A] defendant who denies an essential
element which deals with intent but who admits committing the acts underlying the
offense with which he is charged may employ an entrapment defense.” (emphasis
added)).
At trial, Defendant’s counsel acknowledged he had admitted to committing the
acts constituting the offense for which he was charged—i.e., exchanging messages via
computer regarding plans to engage in sex with “Kelly” and driving to Lincolnton to
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STATE V. KELLER
Inman, J., dissenting
meet him. He only denies possessing the requisite criminal intent to engage in a sex
act with a minor. Following Neville and Sanders, I would hold the State’s argument
on this question unavailing.
D. Prejudice
Defendant has demonstrated that the trial court’s error in denying an
entrapment instruction prejudiced him. Almost two hours into deliberations and
after an initial request for reinstruction on the elements, the jury sent the following
note to the trial judge: “Please define intent to have sex with a minor. Does it matter
if the defendant’s intent is to have sex when the boy is underage or if his intent is to
wait until—is to wait to have sex until the boy is of age?” (Emphasis added). The trial
court, during a hearing outside the jury’s presence, told counsel that “what I would
tell them is . . . it would not be a violation of the law to have intent to have sex after
he’s of age.” When jurors returned to the courtroom, the trial court instructed them
as follows: “It would constitute a violation of the law to have intent with a boy who is
underage. It would not be a violation of the criminal code to . . . intend to have sex
with someone who is not underage.” Ten minutes later, the jury requested
reinstruction on the elements of the crime charged. Four minutes after that
reinstruction was given, the jury informed the trial court that it had reached a
verdict, which resulted in this rather irregular dialogue:
THE COURT: . . . You have a unanimous decision?
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STATE V. KELLER
Inman, J., dissenting
THE FOREPERSON: We have made a decision.
THE COURT: And is it a unanimous decision?
THE FOREPERSON: It was not a unanimous decision.
THE COURT: Okay. And is it by majority
vote . . . ? Because the decision must be unanimous.
....
THE FOREPERSON: Oh, it was unanimous.
THE COURT: Okay.
THE FOREPERSON: I’m sorry.
....
THE COURT: . . . “Unanimous” meaning all 12 are in
agreement with this decision?
THE FOREPERSON: No. No.
JURORS: No. No.
THE FOREPERSON: I think we are confused.
THE COURT: All right. . . . [T]he decision must be
unanimous. If you have not completed your discussions,
then we need to decide when you are coming back because
we will be closing court this afternoon. There’s no
timetable. There’s no—
THE FOREPERSON: We’re done. I just—I think that
maybe we are misunderstanding what you’re trying to ask
us.
THE COURT: Well, the decision of whether or not an
individual is guilty or not guilty must be unanimous. Must
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STATE V. KELLER
Inman, J., dissenting
be the decision that 12 believe guilty or 12 believe not
guilty. That’s what we mean by “unanimous.”
THE FOREPERSON: Oh. Then, no, we are not
unanimous.
THE COURT: Okay. Then I’m going to send you back to
the jury room.
....
So I’m not sure I understand where we are.
THE FOREPERSON: Everyone has made their own
personal decision.
The trial court then reiterated the necessity of a unanimous decision but recessed
court until the following morning. After more than an hour of deliberations the next
day, the jury returned a unanimous verdict of guilty.
As noted above, Defendant admitted to the acts constituting the crime and only
denied possessing the requisite criminal intent. With Defendant’s mindset being the
only element at issue before it, the jury’s multiple requests for additional instructions
on the elements—and specifically as to Defendant’s intent—coupled with its apparent
difficulty in arriving at a unanimous verdict demonstrate “a reasonable possibility
that, had the error in question not been committed, a different result would have been
reached at the trial[.]” N.C. Gen. Stat. § 15A-1443 (2017).
III. CONCLUSION
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STATE V. KELLER
Inman, J., dissenting
Respecting the limitations of appellate review, I dissent not because I conclude
that Defendant has established the defense of entrapment, but because the law
requires us to take his testimony to be true for the limited purpose of determining
whether a jury might find that Defendant has proven that defense to its satisfaction.
Following controlling precedents, I would vacate Defendant’s conviction and remand
for a new trial.
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