An unpublished opinion of the North Carolina Court of Appeals does not constitute
controlling legal authority. Citation is disfavored, but may be permitted in accordance
with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.
NO. COA09-322
NORTH CAROLINA COURT OF APPEALS
Filed:
20 October 2009
STATE OF NORTH CAROLINA
v.
Onslow County
No. 08 CRS 51619
GEORGE STEPHEN BUSIAS
Appeal by defendant from judgments entered 10 December 2008 by
Judge Benjamin G. Alford in Onslow County Superior Court. Heard in
the Court of Appeals 15 September 2009.
Attorney General Roy Cooper, by Special
General Thomas M. Woodward, for the State.
Deputy
Attorney
Michael J. Reece, for defendant-appellant.
CALABRIA, Judge.
George Stephen Busias (“defendant”) appeals judgments entered
upon jury verdicts finding him guilty of possession of a Schedule
II controlled substance with intent to sell and deliver, sale of a
Schedule
II
controlled
substance,
delivery
of
a
Schedule
II
controlled substance, and misdemeanor maintaining a dwelling for
keeping and sale of a controlled substance.
I.
We find no error.
Facts
On 22 January 2008, Adrean Pope (“Pope”), an informant for the
Onslow County Sheriff’s Department (“the Sheriff’s Department”),
went to the home of defendant and purchased ten methadone pills.
-2Pope
was
working
with
Detective
Michael
Washington
(“Det.
Washington”) of the Sheriff’s Department after he had been arrested
for trafficking cocaine.
Defendant, who had a prescription to
legally possess methadone, had been brought to the attention of
Det. Washington by Pope.
The pills that defendant sold to Pope
were tested by the North Carolina State Bureau of Investigation
crime lab (“SBI lab”) and the pills were determined to be 16.7
grams of methadone.
Defendant was
arrested, indicted, and subsequently tried in
Onslow County Superior Court on 8 December 2008 for three counts of
trafficking opium or heroin, possession with intent to manufacture,
sell, and deliver a Schedule II controlled substance, sale of a
Schedule
II
controlled
substance,
delivery
of
a
Schedule
II
controlled substance, and knowingly and intentionally maintaining
a dwelling for keeping and selling a controlled substance.
During
the trial, Pope testified against defendant. On cross-examination,
after being advised by the trial court of his Fifth Amendment right
to avoid self-incrimination, Pope refused to answer two questions
asked
by
defendant’s
counsel.
At
the
close
of
the
State's
evidence, defendant moved to dismiss the charges and the trial
court denied the motion.
court
on
its
own
At the close of all evidence, the trial
motion
dismissed
one
trafficking
charge.
Defendant then moved to dismiss the remaining charges on the basis
of his entrapment defense, and that motion was denied.
On 10 December 2008, the jury returned verdicts of not guilty
on the other trafficking charges and guilty on all the remaining
-3charges.
For the sale of a Schedule II controlled substance
conviction, defendant received an active sentence of 16 months to
20 months in the North Carolina Department of Correction.
For the
convictions of possession with intent to manufacture, sell, and
deliver a Schedule II controlled substance and knowingly and
intentionally maintaining a dwelling for keeping and selling a
controlled substance, defendant received an active sentence of 10
months to 12 months in the North Carolina Department of Correction.
This active sentence was suspended and defendant was placed on
supervised probation for 36 months. The court arrested judgment on
the delivery of a Schedule II controlled substance conviction.
Defendant was also ordered to pay restitution, including, inter
alia, SBI lab fees of $600.
II.
Defendant appeals.
Pope’s Testimony
Defendant argues that the trial court erred when it intervened
to advise Pope during his cross-examination testimony that he could
assert
his
Fifth
Amendment
right
against
self-incrimination.
Defendant offers no authority to support this argument, as required
by N.C.R. App. P. 28(b) (2008).
Therefore, this assignment of
error is dismissed.
Defendant also argues that the trial court erred by failing to
strike Pope’s testimony ex mero motu after Pope twice asserted his
Fifth Amendment right against self-incrimination during crossexamination. Defendant asserts that Pope’s invocation of his Fifth
Amendment privilege denied defendant his Sixth Amendment right to
confront witnesses against him.
However, defendant did not raise
-4a Sixth Amendment argument at trial, and therefore this issue is
not preserved on appeal. “Constitutional issues not raised and
passed upon at trial will not be considered for the first time on
appeal.” State v. Lloyd, 354 N.C. 76, 86-87, 552 S.E.2d 596, 607
(2001)(citation omitted).
This assignment of error is dismissed.
III.
Defendant
argues
that
Entrapment
the
trial
court
erred
by
denying
defendant’s motion to dismiss at the close of all the evidence.
Defendant asserts that the evidence presented at trial established
entrapment as a matter of law.
We disagree.
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. 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.
State v. Davis, 126 N.C. App. 415, 417-18, 485 S.E.2d 329, 331
(1997)(internal citations omitted).
Ordinarily, the issue of whether a defendant
has been entrapped is a question of fact which
must be resolved by the jury. It is only when
the undisputed evidence discloses that an
accused was induced to engage in criminal
conduct that he was not predisposed to commit
that we can hold as a matter of law that he
was entrapped.
State v. Hageman, 307 N.C. 1, 30, 296 S.E.2d 433, 450 (1982)
(internal citations omitted).
-5In the instant case, Pope testified that he had previously
seen defendant selling methadone pills.
He further testified that
defendant agreed to sell him methadone pills and that the defendant
never indicated he was selling the methadone pills unwillingly.
Pope’s testimony creates a dispute in the evidence as to whether
defendant was induced to engage in criminal conduct that he was not
predisposed to commit that must be resolved by a jury. Defendant’s
assignment of error is overruled.
IV.
Restitution
Defendant argues that the trial court erred by ordering him to
pay $600 in SBI lab fees. Defendant incorrectly asserts that these
lab fees should be considered restitution, which must be supported
by “evidence adduced at trial or at sentencing.” State v. Wilson,
340 N.C. 720, 726, 459 S.E.2d 192, 196 (1995).
It is clear from
the judgments that the trial court did not order the SBI lab fees
as restitution, but rather as court costs.
N.C. Gen. Stat. § 7A-
304 allows the trial court, upon conviction, to assess and collect
“[f]or the services of the State Bureau of Investigation laboratory
facilities. . . the sum of three hundred dollars ($300.00) to be
remitted to the Department of Justice for support of the State
Bureau of Investigation.”
N.C. Gen. Stat. § 7A-304(a)(7) (2007).
The trial court properly assessed these costs in each of its
judgments against defendant.
Defendant’s assignment of error is
without merit.
No error.
Judges WYNN and ELMORE concur.
-6Report per Rule 30(e).
