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2010-UP-194 - State v. Michael Blair

THIS OPINION HAS NO PRECEDENTIAL VALUE.  IT SHOULD NOT BE CITED OR RELIED ON AS PRECEDENT IN ANY PROCEEDING EXCEPT AS PROVIDED BY RULE 268(d)(2), SCACR.

THE STATE OF SOUTH CAROLINA
In The Court of Appeals

The State, Respondent,

v.

Michael A. Blair, Appellant.


Appeal From Fairfield County
Kenneth G. Goode, Circuit Court Judge


Unpublished Opinion No.  2010-UP-194
Submitted March 1, 2010 – Filed March 8, 2010


REVERSED AND REMANDED


Deputy Chief Appellate Defender Wanda H. Carter, of Columbia, for Appellant.

Attorney General Henry Dargan McMaster, Chief Deputy Attorney General John W. McIntosh, Assistant Deputy Attorney General Salley W. Elliott, and Senior Assistant Attorney General Harold M. Coombs, Jr., all of Columbia; and Solicitor Douglas A. Barfield, Jr., of Lancaster, for Respondent.

PER CURIAM:  Michael A. Blair appeals his convictions for failure to stop for a blue light and trafficking in crack cocaine, arguing the trial court erred in refusing to charge the jury on the affirmative defense of entrapment.  We reverse and remand for a new trial based on the trial court's refusal to charge entrapment.

This case is substantially similar to State v. Brown, 362 S.C. 258, 265, 607 S.E.2d 93, 96-97 (Ct. App. 2004) (reversing and remanding for a new trial when there was evidence to support an entrapment charge yet the trial court refused to instruct the jury on the defense of entrapment).  Specifically, the defendant in Brown was entitled to an entrapment charge because there was sufficient evidence of inducement and lack of predisposition.  Id. at 264, 607 S.E.2d at 96.

Like the defendant in Brown, Blair delayed approximately two hours in arriving at the agreed-upon location.  In the interim, Tina Peay, the confidential informant, called Blair to find out what was taking him so long.  The sheriff's office was not aware of Blair prior to Peay's phone call to a man named "Tony."  In the tape recorded conversation with Peay, Blair stated, "I ain't got nothing on me, so y'all might have to come back up here to see the dude." 

Based on these facts, Blair produced more than a scintilla of evidence of his lack of predisposition.  See Brown, 362 S.C. at 263, 607 S.E.2d at 95. Once established, the burden shifted to the prosecution to prove predisposition beyond a reasonable doubt.  Id.  The trial court agreed with the solicitor's assessment that there "may have been some predisposition" on Blair's part and declined to charge entrapment on that basis.  However, the prosecution did not meet its burden of proof beyond a reasonable doubt.  Specifically, there was not undisputed evidence of predisposition leading to only one reasonable conclusion.  See State v. Johnson, 295 S.C. 215, 217, 367 S.E.2d 700, 701 (1988) ("The issue of whether or not the defense of entrapment has been established is ordinarily a question of fact for a jury unless there is undisputed evidence and only one reasonable conclusion can be reached."). 

Finally, Blair suffered two-fold prejudice in this case: (1) entrapment was Blair's only defense, and (2) the solicitor made comments regarding the absence of an entrapment charge during closing arguments.  Accordingly, this matter is

REVERSED AND REMANDED.[1]   

HUFF, THOMAS, and KONDUROS, JJ., concur. 


[1]  We decide this case without oral argument pursuant to Rule 215, SCACR.