State v. Keller
| Decision Date | 05 June 2020 |
| Docket Number | No. 201A19,201A19 |
| Citation | 843 S.E.2d 58,374 N.C. 637 |
| Court | North Carolina Supreme Court |
| Parties | STATE of North Carolina v. David Alan KELLER |
Joshua H. Stein, Attorney General, by Sherri H. Lawrence, Assistant Attorney General, for the State-appellee.
Glenn Gerding, Appellate Defender, by Emily Holmes Davis, Assistant Appellate Defender, for defendant-appellant.
In this case we consider whether the trial court erred by refusing to instruct the jury on the defense of entrapment. Defendant contends that he presented sufficient evidence of entrapment to allow the jury to decide the factual issue of whether he was entrapped. We agree. For the reasons stated below, we hold that the trial court committed prejudicial error by failing to instruct the jury on the defense of entrapment, and we reverse the decision of the Court of Appeals.
On 11 May 2015, Detective Brent Heavner, who worked as an undercover officer in an operation targeting online sexual predators for the Lincolnton Police Department, began posting online as a fifteen-year-old boy named "Kelly." Detective Heavner posted a personal advertisement titled "Boy Needs a Man" on the "Personal Encounters" section of Craigslist, which read:
OK never did this so here it goes. I am wanting to experience a man, never have tried it but want to. I have been with a girl and now wanna [sic] try a man. I 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 cause [sic] I will be probably a little nervous. I would prefer a pic and a number so we can not use email. I will be picky so be patient. BUT would like to do this soon, u [sic] would have to come to me. would like to try anything I am a white male open to anyone[.]
The next day, defendant responded to Detective Heavner's post as follows:
Hey[.] I am a 44 white male looking for a young guy to take care of and spoil[.] I am 175 lbs. 32/32 pants[,] 6.5 cut[,] DD free. If you would like to be a daddys [sic] boy and have your every need provided for you let me know I am looking for a boy to treat very special.
Detective Heavner responded to defendant's message asking, "whats [sic] your number and what do you like [?]" Defendant responded by e-mailing his phone number. When Detective Heavner failed to respond, defendant sent the following three e-mails later that day:
Detective Heavner responded the following morning and defendant stated, Defendant asked Detective Heavner for a picture and his "stats" and he sent defendant an image obtained from Google images. In response to the pictures, defendant began complimenting Detective Heavner and offering to take good care of him. Defendant also told Detective Heavner about his three previous "boys." He told Detective Heavner that and "I have had [D]ustin since 2008." They began to discuss when they could meet, but Detective Heavner expressed concern in the following text message exchange:
Defendant went on to state that he did not want to go to jail and told Detective Heavner that "[y]ou know my son got on line [sic] 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 and now has to register as a sex offender."
Prior to this conversation, Detective Heavner had not informed defendant of his age. Defendant continued the conversation and they made plans for defendant to pick him up the next day. When Detective Heavner told defendant that "I want to perform oral sex on u really bad for some reason can we do that[?]" defendant responded, "I don't want to talk about that stuff on here" and expressed his hope that Detective Heavner would understand. The conversation about problems at home continued, until Detective Heavner brought up sex again:
After exchanging additional texts, defendant agreed to meet Detective Heavner and take him back to defendant's home the next day. When defendant arrived at the agreed upon location, officers placed defendant under arrest.
On 10 August 2015 defendant was indicted under N.C.G.S. § 14-202.3 for solicitation by computer or electronic device of a person believed to be fifteen years of age or younger for the purpose of committing an unlawful sexual act and appearing at the meeting location where he was to meet the person whom he believed was a child.
Detective Heavner testified at trial, explaining to the jury how he made the post in the Casual Encounters section of Craigslist and how he had to confirm he was eighteen years old before making his post. Detective Heavner read the e-mails and text messages exchanged between himself and defendant for the jury.
Defendant's housemate, Curtis Miller, testified on behalf of the defense. Miller testified that he had known defendant for approximately twenty-five years and currently resided with him. Miller also testified that during the time Miller knew defendant he had brought home five or six men that were all over the age of eighteen. When the men lived with defendant, they had separate rooms and defendant helped them get jobs and get back on their feet.
Defendant also testified, stating that he began using Craigslist's personal advertisements in 2006. He used Craigslist because it was an adult website and he had previously received messages from minors when he used other online websites and chatrooms. He testified that in order to access the Casual Encounters section of Craigslist, he had agreed that he was over the age of eighteen, and he further explained that Craigslist required users’ date of birth before allowing a post in the Casual Encounters section. He stated that over the course of ten years, he had met multiple men on the website and some of the men lived with him for extended periods. Defendant testified that he was not romantically or sexually involved with every man he met online, or even every man who moved in with him.
With regard to Detective Heavner's age, defendant testified that at the time he gave Heavner his phone number, they had not discussed the matter "because you've got to be 18 to be on Craigslist." He also testified that he believed Detective Heavner was seventeen years old and he would not "mess with anybody" unless they were eighteen. He explained that when he was in his twenties he met Jeremy, who was seventeen at the time, and made Jeremy wait until he was eighteen to move in.
Defendant further testified that he did not include any sexual content in his text messages with Detective Heavner and explained that the detective was the only person during the encounter to allude to the possibility of sexual activity during their conversations. Defendant testified that he responded to Detective Heavner's advertisement because he and his live-in companion were having problems and defendant wanted to make him jealous. He further testified that "sex was not on my mind at this time" and that he was concerned Detective Heavner was in danger because his aunt was not providing for him. He discussed Detective Heavner with his housemate Curtis Miller and planned on letting him stay in the spare bedroom.
However, on cross-examination, defendant admitted that initially, his response to the Craigslist ad was sexual in nature, but that he thought Detective Heavner was over eighteen years old. He further testified that he did not recall Detective Heavner telling him that he was only fifteen years old. He also explained that he did not want Detective Heavner finding anyone else because he was afraid whoever he met may hurt him. He testified that he agreed to have sex with Detective Heavner simply "to shut him up."
At the close of all of the evidence, defendant made a motion to dismiss, which the trial court denied. Defense counsel further argued for jury instructions on the defense of entrapment. The...
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